W.C.A.B. Nos. ADJ3050197 (POM 0270315), ADJ607825 (POM 0277969)-WCAB Panel: Commissioners Aghazarian, Lowe, Cuneo

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 5, 2009

Arbitration-Contribution-WCAB, in case of applicant with cumulative injuries to bilateral upper extremities, neck, back, shoulders and eyes from 1/6/2002 through 1/6/2003, granted defendant's request for removal from WCJ's minute order in which WCJ ordered issue of contribution to arbitration and, although not ruling on whether arbitrators have authority to decide timeliness of a petition for contribution, held that, in this instance, WCJ should have decided jurisdictional issue of whether petition for contribution was timely before referring matter to arbitration because parties raised issue of timeliness before WCJ, WCJ had jurisdiction to decide issue, if petition were found untimely there would have been no need for arbitration, and having WCJ decide issue would have been more efficient and economical for parties. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 33.01[1][a].]

W.C.A.B. No. ADJ3107843 (MON 0208626)-WCAB Panel: Commissioners Brass, Caplane, Aghazarian

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 5, 2009

Attorney's Fees-Attendance at Deposition-WCAB, reversing WCJ's decision, held that applicant's attorney was not entitled to an attorney's fee for attending the deposition of applicant's wife because Labor Code § 5710 limits provision of attorney's fees to depositions of "an injured employee" or a "person claiming benefits as a dependent of the injured employee" and applicant's wife fit into neither category. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 20.02[2][j].]

Enrique Ruiz, Applicant v. Arms Transportation, Inc., Uninsured Employers' Benefits Trust Fund, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 550

W.C.A.B. Nos. ADJ1982767 (LAO 0805809)-WCAB Panel: Commissioners Cuneo, Moresi, Lowe

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 14, 2009

Attorney's Fees-WCAB, granting applicant's petition for reconsideration, held that applicant's attorney was entitled to fee in amount of 15 percent of monetary compensation obtained by applicant as result of present award, when WCAB awarded applicant permanent disability in total amount of $125,005, followed by life pension of $88.90 per week, less credit for applicant's net third-party recovery pursuant to Labor Code § 3861, and WCAB considered responsibility assumed by attorney, care exercised in representing applicant, time involved, and results obtained. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 20.03[1], [2].]

Jose Zamudio, Applicant v. Kushwood Chair, Inc., CIGA by its servicing agent, Sedgwick for Superior National, in liquidation, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 559

W.C.A.B. No. ADJ4186849 (MON 0219539)-WCAB Panel: Commissioners Caplane, Lowe, Cuneo

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 8, 2009

Attorney's Fees-Commutation of Award-WCAB rescinded WCJ's decision in which WCJ found that applicant's attorney's fees should be commuted from far end of applicant's life pension award and, on remand, instructed parties and WCJ to consider "horizontal commutation" of life pension payments in order to pay attorney's fees. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 27.02[2], [6], 32.04[3][b].]

W.C.A.B. No. ADJ6649763 (No WCAB #)-WCAB Panel: Commissioners Lowe, Brass, Caplane (dissenting)

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 30, 2009

Average Weekly Wage Determination-Self-Employment-WCAB held that WCJ erred in calculating applicant/driver's temporary disability indemnity rate following 1/14/2007 left knee injury based upon applicant's gross income, without consideration of expenses, and held, instead, that applicant's average weekly self-employment earnings for purposes of determining temporary disability rate must reflect applicant's net, rather than gross, income pursuant to Labor Code § 4454 and analysis set forth in Hupp v. W.C.A.B. (1995) 39 Cal. App. 4th 84, 45 Cal. Rptr. 2d 859, 60 Cal. Comp. Cases 928. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 6.01.]

W.C.A.B. No. ADJ4698232 (RIV 0076516)-WCAB Panel: Commissioners Aghazarian, Cuneo, Lowe

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed November 3, 2009

California Insurance Guarantee Association-Covered Claims-WCAB held that CIGA had standing to pursue claim of cumulative injury in this matter, when (1) Legion Insurance, the insurer for Advanced Mechanical Insulation, the employer where applicant sustained industrial injury on 3/19/2001, was ordered into liquidation on 4/25/2003, thereby making CIGA the defendant in applicant's specific injury case, (2) CIGA filed claim alleging that applicant, while also employed by California Department of Social Services, In-Home Supportive Services (IHSS), as caregiver for his wife, sustained cumulative trauma during the period 12/2000 to 7/24/2002, and (3) CIGA was party in interest and was entitled to opportunity to prove that applicant sustained cumulative trauma injury while working for different employer and that cumulative trauma injury was partial or total cause of applicant's disability and need for treatment. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 2.84.]

Stephen Flannery, Applicant v. G & O Services, Reliance Insurance, in liquidation, California Insurance Guarantee Association, Pacific Bell, PSI, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 509

W.C.A.B. No. ADJ347577 (SAC 0220919)-WCAB Panel: Commissioner Moresi, Chairman Miller, Commissioner Cuneo

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed September 23, 2009

California Insurance Guarantee Association-General and Special Employers-Other Insurance-WCAB affirmed it prior finding that coverage provided by applicant's self-insured special employer constituted "other insurance" available to applicant under Insurance Code § 1063.1(c)(9) for purpose of relieving California Insurance Guarantee Association (CIGA), on behalf of general employer's insolvent carrier, from liability for applicant's benefits, and that indemnification clause in contract between general employer and self-insured special employer was not analogous to insurance policy containing an exclusion for special employees and did not operate to shield special employer from liability. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 2.60[3], 2.84[3][a].]

James Pritchett, Applicant v. Chipton-Ross, Inc., State Compensation Insurance Fund, Northrop Grumman Corporation, National Fire Insurance Company of Pennsylvania, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 545

W.C.A.B. Nos. ADJ361146 (AHM 0081010), ADJ1841007 (AHM 00770321)-WCAB Panel: Commissioners Cuneo, Aghazarian, Brass

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 19, 2009

California Insurance Guarantee Association-Other Insurance-General and Special Employers-WCAB, reversing WCJ's decision imposing liability on California Insurance Guarantee Association (CIGA) based upon Labor Code § 3602(d) and principles in General Casualty Ins. v. W.C.A.B. (Miceli) (2005) 131 Cal. App. 4th 345, 31 Cal. Rptr. 3d 740, 70 Cal. Comp. Cases 953, held that CIGA was not liable for benefits awarded to applicant for injuries to his neck, both shoulders, psyche, thoracic spine and hearing on 9/10/2008, that WCJ erred in relying on General Casualty given subsequent remittitur in Miceli v. Jacuzzi, Inc. (2006) 71 Cal. Comp. Cases 599 (Appeals Board en banc opinion) because doctrines of res judicata and collateral estoppel did not apply, that Labor Code § 3602(d) was inapplicable to eliminate special employer's liability, that there was no showing that special employees were excluded from coverage under special employer's insurance policy, and that special employer's insurance policy constituted "other insurance" available to applicant under Insurance Code § 1063.1(c)(9) for purpose of relieving CIGA from liability. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 2.60[3], 2.84[3][a].]

W.C.A.B. Nos. ADJ3456844 (MON 0310036), ADJ2277052 (MON 0310037), ADJ 925461 (MON 0331837)-WCAB Panel: Commissioners Lowe, Aghazarian, Moresi (concurring, but not signing)

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 12, 2009

Contribution-Date of Injury-Effect of Compromise and Release Agreement-WCAB, rescinding WCJ's finding, held that California Insurance Guarantee Association (CIGA), in seeking contribution from co-defendants for benefits paid to applicant/wardrobe stitcher/dresser who alleged that she sustained industrial shoulder injuries on 3/9/2002, 12/4/2003 and during period 3/9/2002 through 10/14/2003, was not bound by date of cumulative injury set forth in prior compromise and release agreement, and that issue of applicant's date of injury was properly before WCJ in contribution proceeding and should be determined on record without regard to compromise and release agreement, because compromise and release agreement was not a stipulation by which parties were bound, defendant, in seeking contribution, was not attempting to set aside compromise and release agreement as perceived by WCJ, and defendant expressly reserved right to seek contribution. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 29.01[2], 31.13[2].]

Gordon Kent, Applicant v. Control Components, Inc., Arrowood Indemnity Company, Old Republic Insurance Company, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 527

W.C.A.B. No. ADJ3430003 (AHM 0094014)-WCAB Panel: Commissioners Moresi, Brass, Lowe (concurring, but not signing)

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed September 25, 2009

Contribution-Time to File Petition-WCAB amended arbitrator's finding that defendant was completely barred from seeking contribution from co-defendant and held, instead, that defendant was entitled to seek contribution from co-defendant with regard to supplemental benefits awarded to applicant/manager with industrial heart injury, diabetes and hypertension suffered during cumulative period 1/20/70 through 8/3/2001 when, although arbitrator correctly found that defendant's petition for contribution was untimely as to benefits awarded under original Findings and Award, defendant timely initiated contribution proceedings within one year after supplemental benefits were awarded by way of compromise and release agreement so as to satisfy time limit in Labor Code § 5500.5(c) and preserve right to seek contribution for supplemental benefits. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 24.03[8], 31.13[2].]

W.C.A.B. Nos. ADJ3722191 (GRO 0028583), ADJ916711 (GRO 0033193)-WCJ Michael LeCover (GRO); WCAB Panel: Commissioners Cuneo, Lowe, Aghazarian

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 15, 2009

Credit-Overpayment of Permanent Disability-WCAB denied reconsideration of WCJ's order allowing lien claim of Employment Development Department (EDD) for benefits paid to applicant/laundry worker with 9/22/2002 industrial injuries to right elbow, wrist and thumb and disallowing defendant a credit for EDD lien against applicant's award of permanent disability pursuant to Labor Code § 4909, when WCAB found that, although doctrine of estoppel did not apply to preclude defendant's credit claim, WCJ properly exercised his discretion under Labor Code § 4909 in denying credit for overpayment of permanent disability because defendant was aware of EDD lien when it paid applicant's permanent disability award but failed to withhold money for EDD, overpayment resulted from defendant's own error, and allowing defendant a credit would unfairly impact applicant and EDD. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 7.04[a].]

Lidia Chavez-Esparza, Applicant v. Amy's Kitchen, Zurich North America, Administered by Gallagher Bassett Services, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 497

W.C.A.B. No. ADJ3302147 (SRO 0319460)-WCAB Panel: Commissioners Brass, Lowe, Cuneo

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 19, 2009

Credit-Overpayment of Temporary Disability Indemnity-WCAB, reversing WCJ's finding, held that defendant was entitled under Labor Code § 4904 to a credit against its liability for permanent disability benefits awarded to applicant/food processor who suffered cumulative trauma to her bilateral hands and knees, and in the forms of hypertension, diabetes and gastrointestinal problems during period ending 4/28/2005, for temporary disability payments made by defendant which overlapped with EDD payments to applicant, when there was no proof that EDD provided defendant with notice that it was paying disability benefits to applicant and WCAB found that denying defendant a credit would unjustly provide applicant with a double recovery. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 704[9][a].]

Randall Neitzke, Applicant v. County of Los Angeles, PSI, Defendant, 2009 Cal. Wrk. Comp. P.D. LEXIS 538

W.C.A.B. No. ADJ2352341 (VNO 0508022)-WCJ David L. Pollak (VNO); WCAB Panel: Commissioner Lowe, Chairman Miller, Commissioner Moresi

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 13, 2009

Credit-Overpayment of Temporary Disability Indemnity-Waiver of Issue-WCAB, amending WCJ's finding, held that defendant was not entitled to a credit against permanent disability for overpayment of temporary disability indemnity to applicant/deputy sheriff with 6/21/2004 admitted industrial left knee injury, when defendant failed to raise claimed overpayment as an issue for trial at mandatory settlement conference, thereby waiving right to raise issue on reconsideration. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 7.04[9][a], 26.04[2], 26.06[3].]

W.C.A.B. Nos. ADJ3193455 (SJO 0234823), ADJ3923827 (SJO 0240720)-WCAB Panel: Commissioners Lowe, Caplane, Aghazarian

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed September 28, 2009

Cumulative Injury-Date of Injury-WCAB held that applicant/groundskeeper's "date of injury" with respect to cumulative trauma to neck and both upper extremities was 6/13/2003 under Labor Code § 5412 and State Compensation Insurance Fund v. W.C.A.B. (Rodarte) (2004) 119 Cal. App. 4th 998, 14 Cal. Rptr. 3d 793, 69 Cal. Comp. Cases 579, and that Labor Code § 5500.5 period of liability was one year preceding that date, when WCAB found no evidence showing that applicant knew or should have known his disability was caused by an industrial injurious process distinct from that causing his prior 1/8/99 specific injury until he was alerted to cumulative injury by agreed medical evaluator's 6/13/2003 report. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 24.03[7][a], [b], 31.13[2][a]-[d].]

Fortuna Lopez Santos (Fortuna Lopez-Santos), Applicant v. Plantel Nursery, State Compensation Insurance Fund, U.S. Fidelity and Guarantee Company, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 553

W.C.A.B. Nos. ADJ2595024 (GOL 0093643), ADJ732094 (GOL 0030941)-WCAB Panel: Commissioners Brass, Cuneo, Moresi

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 26, 2009

Cumulative Injury-Evidence-Substantial Evidence-WCAB, upon reweighing evidence, rescinded WCJ's finding that applicant/laborer suffered cumulative trauma to neck, low back, both shoulders, right leg and both arms during period 5/10/2002 through 3/13/2004, and held, instead, that a preponderance of evidence established that applicant did not sustain a cumulative injury, when (1) medical opinions relied upon by WCJ, while assuming existence of cumulative trauma, did not explain mechanism of injury and were not supported by adequate reasoning, (2) medical opinions were not supported by record, which failed to establish that applicant sustained cumulative trauma from 5/10/2002 through 3/13/2004, (3) agreed medical evaluator found that applicant sustained cumulative trauma but for a different time period than that found by WCJ, (4) defendant's qualified medical evaluator concluded that applicant sustained no cumulative trauma subsequent to her 5/10/2002 specific injury to cervical and lumbar spines, and that all of applicant's disability resulted from new and further disability stemming from original injury, and (5) applicant's deposition testimony indicated that applicant never recovered from original injury and had a continuous need for medical treatment. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 4.05[2][a], 27.01[1][c].]

W.C.A.B. No. ADJ2583064 (OAK 0340777)-WCJ Rosa M. Moran (OAK); WCAB Panel: Deputy Commissioner Hamilton, Commissioners Moresi, Cuneo

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed November 12, 2009

Death Benefits-Special Death Benefit-WCAB reversed WCJ's finding that special death benefits were due under Labor Code § 4703.5 to totally dependent minor siblings of decedent who suffered admitted industrial injuries on 9/10/2004 resulting in his death, when Labor Code § 4703.5 was amended in 2002 to define "dependent minor children" pursuant Labor Code § 3501(a), WCAB found that Labor Code § 3501(a) does not apply where there is a surviving totally dependent parent, and here decedent's mother, who was also totally dependent on decedent, was a "surviving totally dependent parent" to minor siblings, making Labor Code §3501(a) inapplicable. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 9.02[5], 9.05[3].]

Hector E. Hernandez (Deceased), Geana Hernandez (Widow), Applicant v. City of Los Angeles, PSI, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 520

W.C.A.B. No. ADJ2047537 (MON 0251944)-WCAB Panel: Commissioner Lowe, Brass, Cuneo

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 5, 2009

Death Benefits-Total Dependency-Disabled Children-WCAB, granting reconsideration, held that daughter of decedent/director of security services who suffered injuries to his internal organs, heart, and psyche during period 1969 through 4/11/99 resulting in his death on 6/25/2000 was a total dependent under Labor Code § 3501(a) by virtue of her disability and was entitled to a death benefit of $125,000.00, but was not entitled to lifetime benefits, as awarded by WCJ, because Labor Code § 4703.5 as effective on date of decedent's injury did not provide lifetime benefits for disabled dependent children. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 9.02[1], 9.02[5], 9.03[3], 9.05[3][b].]

Mata Jefferson (App), Melvin Jefferson (Dec'd), Applicant v. Performance Excavators, State Compensation Insurance Fund, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 526

W.C.A.B. No. ADJ3493934 (OAK 0293830)-WCJ Stanley E. Shields (OAK); WCAB Panel: Commissioners Brass, Aghazarian, Lowe

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 28, 2009

Death Benefits-Special Death Benefit-WCAB upheld WCJ's finding that totally dependent widow of decedent, while not the actual parent of decedent's totally dependent grandchildren, acted as a parent for purpose of making her a "surviving totally dependent parent" within meaning of Labor Code § 3501(a), and precluding grandchildren's eligibility for special death benefit under Labor Code § 4703.5, as amended in 2002. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 9.02[5], 9.05[3].]

W.C.A.B. No. ADJ976241 (VNO 0301388)-WCAB Panel: Commissioners Moresi, Caplane, Deputy Commissioner Hamilton

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 30, 2009

Discovery-Depositions-WCAB denied defendant's 9/28/2009 Petition to Depose applicant regarding her medical status, subjective complaints and activities of daily living, notwithstanding that applicant was last deposed on 12/28/2004, when WCAB found no good cause for deposing applicant again given that applicant had provided extensive trial testimony regarding relevant issues during six days of trial between 4/17/2007 and 5/22/2008, defendant requested that applicant produce documents at deposition which WCAB found were unrelated to pending issues, and WCAB concluded deposition of applicant would be unduly burdensome. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 25.41.]

Kin Ho, Applicant v. California Highway Patrol, State Compensation Insurance Fund, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 522

W.C.A.B. No. ADJ3114841 (SFO 0467014)-WCJ David Hettick (SFO); WCAB Panel: Commissioners Cuneo, Brass, Chairman Miller

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed September 25, 2009

Discovery-Order Compelling Attendance at Evaluation With Non-Physician Expert-WCAB denied defendant's petition for removal from WCJ's order precluding defendant from conducting additional discovery and denying defendant's request for an order compelling applicant/dispatch supervisor to submit to an interview with a vocational rehabilitation expert selected by defendant and a functional capacity evaluation in connection with psychiatric injury suffered during cumulative period ending 4/8/2003, because WCAB has no authority to compel an applicant to submit, involuntarily, to interviews and evaluations by non-physician experts and, even if WCAB had such authority, defendant showed no good cause to reopen discovery after it had closed pursuant to Labor Code § 5502, as defendant did not demonstrate that it could not, with exercise of due diligence, have performed requested discovery prior to mandatory settlement conference. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 25.40[2], 26.04[2].]

Geraldine Morrow, Applicant v. Country Wide Home Loans, Inc., Dynamic Claim Services, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 536

W.C.A.B. No. ADJ478742 (VNO 0425811)-WCJ Debra Keyson (VNO); WCAB Panel: Deputy Commissioner Sullivan, Commissioners Moresi, Cuneo

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 28, 2009

Discovery-Social Security Records-WCAB denied applicant's petition for removal from WCJ's order that applicant produce non-privileged social security records, including application, history, questionnaire and/or intake forms, medical reports, and medical records requested by defendant, when WCAB found that these documents were relevant and could lead to discovery of relevant evidence relating to applicant's claim for 2/16/2001 industrial injuries to her right ankle, neck, mid back, low back and shoulder, and that applicant did not show substantial prejudice or irreparable harm would result if removal was not granted or that reconsideration would be an inadequate remedy after a final decision was issued. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 1.11[3][f], 25.40[1], [2], 26.03[4].]

W.C.A.B. Nos. ADJ2071074 (SFO 0503938)-WCAB Panel: Commissioners Caplane, Lowe, Brass

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 12, 2009

Discrimination-Labor Code § 132a-WCAB, reversing decision of WCJ, held that defendant did not discriminate against applicant by reason of his industrial injury in violation of Labor Code § 132a, since applicant's repeated failure to respond to defendant's requests to contact defendant to discuss his return to work, not his industrial injury, was basis for termination of his employment, when WCAB found that applicant sustained industrial injury to his right shoulder and right arm on 12/29/2003, that applicant's case-in-chief was settled by way of compromise and release dated 3/14/2008, that defendant sent applicant two letters, informing him that defendant was uncertain as to applicant's ability to perform his job in light of work restrictions placed by treating physician and wanted to discuss matter with him, that applicant acknowledged receiving both letters, acknowledged that he understood that, by failing to respond to them, he would be voluntarily resigning his employment, but nevertheless failed to respond to them, and that these facts meant that applicant had not met requirement in Department of Rehabilitation v. W.C.A.B. (Lauher) (2003) 30 Cal. 4th 1281, 135 Cal. Rptr. 2d 665, 70 P.3d 1076, 68 Cal. Comp. Cases 831, that he establish that he was singled out for discriminatory treatment that would not be visited on similarly situated, but non-industrially injured, employee. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 10.11[1].]

W.C.A.B. No. ADJ 1393594 (POM 0271995)-WCJ Michael A. Martinez (POM);WCAB Panel: Commissioners Brass, Cuneo, Caplane

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 21, 2009

Employment Relationship-WCAB held substantial evidence did not support finding of special employment relationship between temporary employment agency, illegally uninsured for workers' compensation, and defendant bakery at which applicant sustained injury AOE/COE on 3/5/2003, when temporary employment agency retained control of its employees and the details of their work, including onsite supervision, quality control problems, discipline problems, and type of uniform worn; WCAB held that facts that contract/service agreement existed and applicant was working at defendant's bakery were not dispositive of employment issue, and that right to control work and surrounding circumstances must be considered in determining whether general/special employment exists. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 3.142[1], 21.03[4][d].]

Jose Gonzalez, Applicant v. Charles Lee Lawrence, et al., Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 514

W.C.A.B. No. ADJ 3163124 (VNO 0488598)-WCJ Mark S. Feldman (VNO);WCAB Panel: Commissioners Aghazarian, Brass, Caplane

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed September 30, 2009

Employment Relationship-Ultimate Hirer-WCAB found that business entity or corporation that owned building where applicant/painter sustained industrial injury 4/11/2002 was ultimate employer of both the unlicensed painting entity contracted to do the work and of applicant, who was hired by unlicensed painting entity, and that applicant's due process rights were not violated. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 3.49.]

W.C.A.B. No. ADJ363747 (RDG 0125429)-WCAB Panel: Commissioners Cuneo, Lowe, Moresi (concurring, but not signing)

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 5, 2009

Evidence-Medical Evidence-Substantial Evidence-WCAB, rescinding WCJ's finding, held that WCJ erred in determining that applicant/dishwasher/bus person's 8/21/2005 industrial injuries to her right major elbow, right major upper extremity, right shoulder and low back caused complex regional pain syndrome (CRPS), when medical reports relied upon by WCJ did not constitute substantial evidence to support finding of CRPS because, although reports indicated that applicant suffered some disability from CRPS, reports did not explain how applicant's CRPS was industrially caused; WCAB held that report of panel qualified medical evaluator constituted substantial evidence indicating that applicant's symptoms of CRPS predated her industrial injuries and that applicant exaggerated her complaints. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 4.05[2][a], 27.01[1][c].]

Mary Currie, Applicant v. U.C.L.A. Medical Center, Regents of the University of California, PSI, Administered By Sedgwick Claims Management Services, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 501

W.C.A.B. No. ADJ1498752 (MON 0303597)-WCJ Gilbert Katen (MON); WCAB Panel: Commissioners Lowe, Brass, Cuneo

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed November 9, 2009

Evidence-Medical Evidence-WCAB affirmed WCJ's finding that opinion of agreed medical evaluator in internal medicine constituted substantial evidence to support finding that applicant/computer keyboard operator who suffered cumulative injuries during period 8/5/95 through 12/16/2002 to bilateral hands, wrists, upper extremities, neck and in forms of hypertension also suffered aggravation of her diabetes but that underlying cause of applicant's diabetes was non-industrial, and that evaluator's failure to provide substantial evidence on apportionment of permanent disability did not preclude a finding that his opinion was substantial evidence that industrial injury caused aggravation of applicant's diabetes. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 4.05[2][a], 27.01[1][c].]

Ernesto Mercado, Applicant v. Personnel Plus, Inc., American Home Assurance Company administered by AIG Domestic Claims, Inc., Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 534

W.C.A.B. No. ADJ404999 (MON 0357699)-WCAB Panel: Commissioners Cuneo, Lowe, Brass

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 14, 2009

Evidence-Medical Evidence-WCAB's Duty to Develop Record-WCAB granted defendant's request for removal from WCJ's order appointing a regular physician pursuant to Labor Code § 5701 to evaluate applicant/labor clerk with 12/18/2007 admitted industrial low back injury, when WCAB found that, although WCJ reasonably determined that treating physician's report was insufficient to allow a determination regarding adequacy of parties' compromise and release agreement, WCJ was obligated to follow procedures set forth in McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 67 Cal. Comp. Cases 138 (Appeals Board en banc opinion) for development of medical record, which required first that WCJ allow parties to obtain a supplemental report from physician who previously reported in case, then, if issue remained unresolved, that WCJ allow parties to request evaluation by an agreed medical evaluator or panel qualified medical evaluator, and finally, as a last resort, that WCJ appoint a regular physician to resolve issue. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 22.06[7], 25.40[1].]

Corrine Shatzer, Applicant v. Qualex, Inc., Old Republic Insurance, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 554

W.C.A.B. No. ADJ149130 (SAC 0317143)-WCAB Panel: Commissioner Lowe, Deputy Commissioner Dietrich, Commissioner Moresi (concurring, but not signing)

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 1, 2009

Evidence-Medical Evidence-WCAB's Duty to Develop Record-WCAB upheld its prior decision reversing WCJ and finding that agreed medical evaluator's opinion, upon which WCJ had relied, did not constitute substantial evidence to justify apportionment of 53 percent permanent disability suffered by applicant/production worker with 12/23/2001 injuries to neck, right shoulder and bilateral upper extremities, and further held that it did not err in failing to rescind, rather than reverse, WCJ's permanent disability finding and return matter to trial level for further development of record on issue of apportionment, because defendant knew prior to trial that issue of apportionment was being contested and had ample opportunity before discovery closed to clarify agreed medical evaluator's opinion but instead chose to rely on inadequate reporting, thereby failing to meet its burden of proving apportionment and justifying WCAB's reversal of WCJ's apportionment finding. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 22.06[7], 25.40[1].]

W.C.A.B. No. ADJ6699885 (No WCAB #)-WCJ Tien Nguyen (AHM); WCAB Panel: Commissioners Lowe, Brass, Cuneo

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 6, 2009

Expedited Hearings-Issues Raised-Due Process-WCAB affirmed WCJ's finding that issue of disputed body parts was an appropriate issue for expedited hearing in connection with claim of applicant/general manager who suffered admitted left foot and ankle injuries on 6/4/2008, and alleged low back and left knee injuries as a compensable consequence of admitted injuries, and found that WCJ did not violate defendant's due process rights by deciding issue, even though applicant's Declaration of Readiness to Proceed listed "medical treatment" as an issue but did not specifically list disputed body parts, when defendant had notice that disputed body parts were at issue by way of Application for Adjudication of Claim and medical reports but failed to conduct adequate discovery on issue, defendant made no appearance at expedited hearing despite being served with proper notice, defendant did not object to intent to submit case for decision, use of AOE/COE priority calendar, as requested by defendant, would cause unfair delay, and defendant was given meaningful opportunity to present evidence and be heard. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 21.02[2], 25.09[2], 26.02[1].]

W.C.A.B. No. ADJ 595589 (LAO 0868796)-WCAB Panel: Commissioners Cuneo, Lowe, Deputy Commissioner Dietrich

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed November 10, 2009

Injury/Death AOE/COE-WCAB, in reversing WCJ, held that record supported a finding that applicant sustained industrial injury 9/26/2005 resulting in his death from eosinophile myocarditis heart failure, when three reporting physicians all recognized that exertion could have precipitated the cardiac arrest that led to applicant's death because of his preexisting eosinophile myocarditis, and, applying principles set forth in Clemmens v. Workers' Comp. App. Bd. (1968) 261 Cal. App. 2d 1, 33 Cal. Comp. Cases 186, and Fonino v. Workers' Comp. App. Bd. (1969) 273 Cal. App. 2d 684, 34 Cal. Comp. Cases 363, it was reasonable to conclude that on 9/26/2005 applicant was performing his usual work duties of loading and unloading lumber yard materials and that such activities involved a level of exertion that precipitated his heart failure and death. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 4.150, 4.152[3], 4.153, 4.156 [1], [2].]

Kristin Pyle (Dec'd), Applicant v. Schenone Specialty Foods, dba Chocoholics Divine, Truck Insurance Exchange, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 547

W.C.A.B. No. ADJ 1169225 (STK 0210283)-WCJ W. Kearse McGill (STK);WCAB Panel: Commissioners Caplane, Cuneo, Brass

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed September 28, 2009

Injury AOE/COE-Off-Duty Social Activity-WCAB held that applicant/bookkeeper sustained injury arising out of and in the course of employment resulting in her death 12/19/2006 from auto accident shortly after leaving company holiday party, when, under Labor Code § 3600(a)(9) and two-pronged "reasonable expectancy" test of Ezzy v. Workers' Comp. Apps. Bd. (1983) 146 Cal. App. 3d 252, 194 Cal. Rptr. 90, 48 Cal. Comp. Cases 611, it was clear that requirement of participation in social activity at issue was an objectively reasonable belief and since applicant was unable to testify as to her subjective belief, it was sufficient to show that belief in requirement of participation in social activity was an objectively reasonable belief, this pursuant to Childers v. Shasta Livestock Auction Yard, Inc. (1987) 190 Cal. App. 3d 792, 235 Cal. Rptr. 641, 52 Cal. Comp. Cases 190. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 4.25.]

Injury AOE/COE -Intoxication-WCAB held that McCarty v. Workers' Comp. Apps. Bd. (1974) 12 Cal. 3d 677, 527 P.2d 617, 39 Cal. Comp. Cases 712 remains viable as establishing liability of employer, notwithstanding enactment of Labor Code § 3600(a)(9), for employees driving home from work when their intoxication is due to approved consumption of alcohol on company premises and such activity proximately caused the accident in question, and that applicant, whose alcohol level at time of death was twice the legal limit, was still an employee while driving home from company holiday party in question when defendant employer supplied and approved consumption of alcohol at company holiday party and consumption of alcohol at company holiday party was a proximate cause of applicant's death given timeline of events when applicant left party at 7:10 p.m., her cell phone went dead at 7:22 p.m. while talking to her boyfriend en route home, and witness came upon auto accident scene at 7:35 p.m. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 4.156[2].]

W.C.A.B. No. ADJ701327 (ANA 0388262)-WCAB Panel: Commissioners Cuneo, Brass, Aghazarian

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed November 9, 2009

Jurisdiction-Out of Sate Injuries-WCAB held that it had jurisdiction over applicant's claims for injuries to his neck, back, left shoulder, knees, lower extremities, right ankle, right great toe, head and neurological systems suffered during a period 9/4/2002 through 3/3/2004 while playing professional football for a Florida football team, even though applicant's injuries occurred while applicant was playing football outside of California, applicant's contract to play was signed in Florida, and there was a clause in applicant's contract with Florida team providing that Florida had exclusive jurisdiction over workers' compensation claims, when applicant practiced football in California, received Florida team's offer to play while in California, and was represented by a California based agent, and WCAB concluded that it had jurisdiction because Florida workers' compensation law did not afford coverage to football players, and because applicant did not knowingly waive his right to California jurisdiction as he did not understand jurisdiction issue at time he signed contract. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 3.22[2].]

Chris Derboghossian, Applicant v. All Tune & Lube, Erie Insurance Company, adjusted by, Crawford & Company, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 505

W.C.A.B. No. ADJ3107843 (MON 0208626)-WCAB Panel: Commissioners Brass, Caplane, Aghazarian

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 5, 2009

WCAB Jurisdiction-Contempt Proceedings-WCAB granted defendant's petition for removal based upon showing of substantial prejudice and irreparable harm, rescinded WCJ's order indicating that defense counsel and its claims adjuster were in contempt of court based upon adjustor's testimony at trial that she did not pay applicant's claim for transportation expenses pursuant to earlier Findings and Award because she was told by defendant's attorney not to do so, and, distinguishing between "direct contempt" (that which occurs in presence of WCJ), "indirect contempt" (that which occurs outside of WCJ's presence), and "hybrid contempt" (that which occurs in WCJ's presence for reasons occurring outside of WCJ's presence), held that, pursuant to Labor Code §§ 134 and 5903(c), WCJ was not authorized to adjudicate allegations of "indirect contempt" as in allegedly occurred in this case, but was required to direct such allegations to WCAB for determination. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 21.09.]

W.C.A.B. No. ADJ4698232 (RIV 0076516)-WCAB Panel: Commissioners Aghazarian, Cuneo, Lowe

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed November 3, 2009

Laches-WCAB held that CIGA's claim that applicant sustained cumulative injury was not barred by equitable doctrine of laches, when, even if WCAB were to assume CIGA's lack of diligence had been demonstrated, no actual evidence was presented on issue of prejudice in that WCJ did not make a finding of prejudice, death of applicant's wife, which deprived parties of her testimony, had no effect on employer's ability to defend against applicant's cumulative trauma injury claim, and applicant was best witness as to his work duties for employer. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 30.21[2][d].]

W.C.A.B. Nos. ADJ2452007 (STK 0169879), ADJ3887249 (STK 0161013), ADJ4035121 (STK 0149158), et. al.-WCAB Panel: Commissioners Brass, Moresi, Cuneo

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed September 21, 2009

Liens-Medical Treatment-Outpatient Surgery Centers-Licensure and Accreditation Requirements-WCAB, while affirming WCJ's decision denying defendants' motion to summarily disallow all lien claims for medical services provided by lien claimant between 11/1/2002 and 7/8/2004, held that (1) WCJ, in denying defendant's motion, erroneously concluded that defendant carried burden of proving lien claimant did not have a valid fictitious-name permit, (2) under Zenith Insurance Company v. W.C.A.B. (Capi) (2006) 138 Cal. App. 4th 373, 41 Cal. Rptr. 3d 380, 71 Cal. Comp. Cases 374 and Stokes v. Patton State Hospital (2007) 72 Cal. Comp. Cases 996 (Appeals Board Significant Panel Decision), lien claimant has initial burden of proving that it complied with applicable licensure and accreditation requirements for services it provided, (3) although lien claimant's fictitious-name permit expired on 10/31/2002, this alone did not require a summary determination that defendants had no obligation to pay for services provided by lien claimant during that time because other facts could be relevant in determining compensability of lien claims and public policy considerations underlying fictitious name requirement may outweigh equitable consequences of ordering forfeiture of fees for services to enrichment of defendants who received benefit of services; WCAB returned matter to WCJ to further develop the record, if required, and to address compensability of each of lien claimant's liens. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 30.04[3].]

Rosita M. Carillo, Applicant v. Gardner Family Health Network Inc., State Compensation Insurance Fund, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 496

W.C.A.B. No. ADJ2568410 (SJO 0232956), ADJ1457908 (SJO 0232959)-WCJ Ellen K. Farmer (SJO); WCAB Panel: Commissioners Lowe, Cuneo, Brass

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 13, 2009

Liens-Medical Treatment-Reasonableness of Charges-WCAB upheld WCJ's finding that chiropractor with lien for chiropractic treatment provided to applicant who suffered injuries to spine, upper extremities and left hip on 6/25/2001 and during period 5/2001 to 12/10/2001, sufficiently qualified as an expert to testify regarding CPT code billing in Official Medical Fee Schedule related to manipulation under anesthesia (MUA), because chiropractor had more knowledge than the ordinary person regarding specifics of billing by virtue of his attendance and presentation at many seminars on CPT code billing as it pertained to MUA. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 30.04[3], [11][c].]

W.C.A.B. No. ADJ3276335 (SBR 0303724)-WCJ Melanie Schodde (SBR); WCAB Panel: Commissioners Aghazarian, Cuneo, Brass

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 30, 2009

Medical-Legal Procedure-Reimbursement of Expenses-Physicians Signature on Reports-WCAB affirmed WCJ's award of penalties and interest to lien claimant/primary treating physician for medical reports submitted in connection with treatment rendered to applicant/driver/loader/unloader for industrial injuries to left shoulder, left upper extremity, neck, chest and right shoulder, notwithstanding that physician did not sign all medical reports, when physician did sign initial report and permanent and stationary report, and WCAB did not find physician's failure to sign other reports to be so material as to affect his entitlement to payment. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 10.40[1], 10.43, 22.09[5].]

Carlos Del Cid, Applicant v. Walters & Wolf Glass, Gallagher Bassett Corona, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 504

W.C.A.B. No. ADJ4398691 (SFO 0510049)-Gene M. Lam (SFO); WCAB Panel: Commissioner Cuneo, Chairman Miller, Commissioner Caplane

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 26, 2009

Medical-Legal Procedure-Panel Qualified Medical Evaluators-WCAB denied removal from WCJ's order striking qualified medical evaluator's reports and order that second panel of qualified medical evaluators be selected to evaluate applicant with 6/15/2007 injury to cervical spine, when WCJ's orders were based upon his finding that original medical evaluation was not conducted at medical office listed on panel selection form as required by 8 Cal. Code Reg. § 34(b) and was performed without a translator present even though applicant had difficulty with English, and WCAB found that WCJ was justified in striking reports on these bases and ordering a new panel of qualified medical evaluators and that there was no showing WCJ's orders would result in significant prejudice or irreparable harm so as to justify removal under 8 Cal. Code Reg. § 10843(b). [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 1.11[3][f], 22.06[e], 22.08[3], 26.03[4].]

Patricia Dorso, Applicant v. Warehouse Demo Services, Inc., State Compensation Insurance Fund, Subsequent Injuries Benefits Trust Fund (real party in interest in present proceeding), Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 507

W.C.A.B. No. ADJ717766 (SJO 0251442)-WCJ Patrick K. Wickler; WCAB Panel: Commissioners Caplane, Aghazarian, Brass

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 20, 2009

Medical-Legal Procedure-Qualified Medical Evaluators-Subsequent Evaluations-WCAB, in Subsequent Injuries Benefits Trust Fund (SIBTF) proceeding, held that report of qualified medical evaluator who evaluated applicant/product demonstrator with 9/11/2004 right shoulder injury, was inadmissible on issue of whether applicant had any disability or impairment to left upper extremity resulting from pre-existing kidney disease which required that applicant undergo hemodialysis through a shunt in her left arm, when because applicant was required under Labor Code § 4062.3(j) to seek evaluation from qualified medical evaluator who had previously evaluated applicant with regard to her industrial injury, especially since prior evaluator had done testing and strength measurements on applicant's left and right upper extremities and had obtained a history of symptoms and complaints. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 22.06[1][e], [7].]

Scott Jamar, Applicant v. County of Sonoma, Gregory Bragg and Associates, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 525

W.C.A.B. No. ADJ 2893157 (SRO 0139272)-WCJ Michael J. Hurley (SRO);WCAB Panel: Commissioners Cuneo, Aghazarian, Chairman Miller

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed November 9, 2009

Medical-Legal Procedure-Panel Qualified Medical Evaluator-WCAB denied defendant's Petition for Removal, finding no significant prejudice or irreparable harm to defendant, when WCJ issued Order Un-Submitting the Case and ordered defendants to return to panel QME for diagnosis under page 404, Table 15-7 of AMA Guides 5th Edition to properly rate range of motion, whole-person impairment, this after rater indicated supplemental report was necessary for a complete rating to issue, and when defendant's payment of further medical expenses beyond $6,593.75 already paid for panel QME's medical-legal opinions did not cause irreparable harm to defendant, noting that it could be more expensive to strike panel QME as requested by defendant and obtain medical-legal evaluation from new QME. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 1.11[3][f], 26.03[4].]

Benjamin W. Mills, Applicant v. State Compensation Insurance Fund, Defendant, 2009 Cal. Wrk. Comp. P.D. LEXIS 535

W.C.A.B. No. ADJ3256331 (OAK 0345045)-WCAB Panel: Commissioners Moresi, Cuneo, Chairman Miller

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 15, 2009

Medical-Legal Procedure-Qualified Medical Evaluations-WCAB granted applicant's request for removal from WCJ's order compelling him to attend a medical examination with panel qualified medical evaluator selected in connection with his 12/16/2006 psychiatric injury, when applicant claimed to have sustained psychiatric injury on 12/16/2006, 12/28/2007, and during cumulative period "12/28/2007 to present," applicant had chosen a different panel qualified medical evaluator to evaluate him in connection with 12/28/2007 psychiatric injury, and, notwithstanding WCJ's finding that applicant was entitled to separate qualified medical evaluations for each injury, WCAB held that pursuant to Labor Code §§ 4062.3(i) and 4062.3(j) applicant was entitled to only one panel qualified medical evaluation for all claims of psychiatric injury. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 22.06[1][e].]

Phyllis Payne, Applicant v. A.C. Transit, Cambridge Integrated Services, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 544

W.C.A.B. No. ADJ3829948 (OAK 0323674)-WCJ Stanley E. Shields (OAK); WCAB Panel: Commissioners Brass, Cuneo, Moresi

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed November 3, 2009

Medical-Legal Procedure-Panel Qualified Medical Evaluators-WCAB affirmed WCJ's 7/30/2009 determination allowing second PQME for applicant bus driver injured 12/4/2005, when there was no question that Administrative Director Rule 30(d)(2) (8 Cal. Code Reg. § 30(d)(2)) envisioned selection of second QME when issue exists outside initial QME's scope of practice, applicant specifically claimed injury to respiratory and psyche, and psyche claim was outside scope of first QME's practice, which involved cardiology and internal medicine; WCAB held WCJ could apply Administrative Director Rule 31.7 (8 Cal. Code Reg. § 31.7), which became effective 2/19/2009 and pre-dated applicant's 12/4/2005 injuries and expressly provides several alternative definitions of "good cause" for obtaining additional evaluation in a different specialty, when change of law in Rule 31.7 was procedural, and not substantive, and applied to pending cases regardless of date of injury; WCAB held that WCJ's stated intent to order evaluation by second QME met definition of good cause under Rule 31.7(b)(1). [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 22.11[6].]

Anthony Punzalan, Applicant v. Albertsons, PSI, Adjusted By Specialty Risk Services, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 546

W.C.A.B. Nos. ADJ232814 (MON 0331882), ADJ4498631 (MON 0334185)-WCAB Panel: Commissioners Brass, Lowe, Cuneo

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed November 10, 2009

Medical-Legal Procedure-Panel Qualified Medical Evaluators-WCAB granted removal from WCJ's order that qualified medical evaluator (QME) panel be stricken and that Medical Unit issue a second QME panel to evaluate applicant/night crew clerk with 9/9/2005 injuries to neck, back, both wrists and left shoulder and alleged injuries to psyche and internal system, when WCJ's order was based on her finding that defendant did not comply with process in Labor Code § 4062.2(c), but WCAB determined that defendant complied with Labor Code § 4062.2(c) by striking panel QME in psychiatry when parties were unable to agree on agreed medical evaluator (AME) within 10 days of QME panel assignment, that defendant's statement in letter written prior to striking QME indicating that if agreement was not made on an AME it "will be striking Dr. Greenberg from the list" did not invalidate QME panel especially since a timely letter followed striking one doctor, that WCJ's "form over substance" determination was not supported by record, that applicant waived right to strike physician by not doing so within statutory time period, and that panel should remain in place as issuance of new panel would be detrimental to goal of expeditious litigation and would cause significant prejudice to defendant. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 1.11[3][f], 22.06[1][a], 26.03[4].]

Antoinette Young, Applicant v. Reviewco, Inc., AIG Claims Services, Inc., Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 558

W.C.A.B. No. ADJ 2233720 (ANA 0335456)-WCJ Agnes T. Barling (ANA);WCAB Panel: Commissioners Aghazarian, Brass, Caplane

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed September 30, 2009

Medical-Legal Procedure-Agreed Medical Evaluator-Ex Parte Communication-WCAB held that, with respect to applicant's petition for removal, WCJ erred in striking all of agreed medical evaluator's reports and depositions, and that only 9/14/2007 deposition was tainted and subject to exclusion, when applicant properly noticed 9/14/2007 deposition of agreed medical evaluator, defense counsel, who was unable to attend due to schedule conflict, did not send substitute attorney to deposition, and while 9/14/2007 deposition did not necessarily constitute improper ex parte communication, applicant's attorney's off-the-record discussion at deposition violated Labor Code § 4062.3(f), thereby tainting entire deposition. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 22.06[4].]

W.C.A.B. No. ADJ 1794958 (SAL 0095310)-WCAB Panel: Commissioners Lowe, Aghazarian, Moresi (dissenting)

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed November 2, 2009

Medical Treatment-Medical Provider Networks-Notice-Majority of WCAB panel held that 8 Cal. Code Reg. § 9767.9(f) required that defendant's notice of transfer of care into a medical provider network be sent to applicant at his or her residence and to applicant's primary treating physician, but nothing in regulation required that defendant send notice to secondary or surgery consult. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 5.05[13].]

Medical Treatment-Medical Provider Networks-Notice-Majority of WCAB panel rescinded WCJ's Findings and Order that defendant was liable for medical treatment self-procured by applicant breakfast manager with industrial injury to both knees on 8/31/2000 and stipulated award of 40 percent permanent disability and future medical treatment in that defendant neglected or refused to provide reasonable medical treatment by failing to provide required notice, and returned matter to trial level, when record was unclear whether (1) specialist was part of defendant's prior medical provider network before defendant changed to new network, (2) defendant had authorized arthroscopic surgery performed by specialist following its notice to applicant about transfer of care to new network, and (3) WCJ relied on any other statute or regulation other than 8 Cal. Code Reg. § 9767.9(f) to conclude that defendant was required to send notice of medical provider network change to specialist. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 5.05[13].]

Manuela Ramirez, Applicant v. A & L Staffing, State Compensation Insurance Fund, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 548

W.C.A.B. No. ADJ662689-WCAB Panel: Commissioners Lowe, Moresi, Cuneo

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 27, 2009

Medical Provider Networks-Change of Treating Physician-WCAB affirmed WCJ's order requiring defendant to authorize change of treating physician within its medical provider network (MPN) on behalf of applicant with 10/21/2008 admitted industrial injuries to back, neck, hips and head, when applicant's dispute with original treating physician's release from care constituted a dispute over "the diagnosis or treatment prescribed by the treating physician" pursuant to Labor Code § 4616.3(c), thereby requiring defendant to follow Independent Medical Review procedures set forth in Labor Code § 4616.4 and precluding resolution through process in Labor Code §§ 4061 and 4062 as controlled by 8 Cal. Code Reg. § 9785(b). [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 505[13].]

Patrick Doherty, Applicant v. United Parcel Service, Liberty Mutual Insurance Company, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 506

W.C.A.B. No. ADJ4424138 (SFO 0488945)-WCJ Larry W. Quan (SFO); WCAB Panel: Commissioner Brass, Chairman Miller, Commissioner Caplane

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed September 29, 2009

Medical Provider Networks-Notice Requirements-WCAB, affirming WCJ's decision, held that applicant/feeder/driver/trailer was required to transfer his medical treatment for bilateral knee injury suffered on 5/5/2003 and during cumulative period through 5/5/2003 to defendant's medical provider network (MPN), when defendant sent applicant required notices regarding transfer of care in English and Spanish in compliance with 8 Cal. Code Reg. §§ 9767.1 et seq., and applicant's condition did not fall into any exceptions listed in Labor Code § 4616.2(3) which would prevent transfer of care. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 5.05[13].]

Angel Zuniga, Applicant v. Newstar Fresh Foods, LLC, AIG, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 560

W.C.A.B. No. ADJ6653817-WCJ Stuart R. Crymes; WCAB Panel: Commissioners Moresi, Brass, Aghazarian

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed September 24, 2009

Medical Provider Networks-Notice Requirements-WCAB affirmed WCJ's finding that applicant with admitted industrial injuries to back and shoulders on 11/5/2008 was allowed to continue to treat with physician outside defendant's medical provider network (MPN) pursuant to Knight v. United Parcel Services (2006) 71 Cal. Comp. Cases 1423 (Appeals Board en banc opinion), when defendant's notice regarding transfer of care to MPN did not comply with 8 Cal. Code Reg. §§ 9767.9(e), (f) and 9767.10, because notice did not address determination by defendant regarding completion of treatment, no notices were sent to applicant at his residence nor were notices sent to applicant's treating physician, as required, and notices mailed to applicant's attorney did not satisfy statutory notice requirements. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 5.05[13].]

W.C.A.B. No. ADJ1452726 (RIV 0075376)-WCAB Panel: Commissioners Caplane, Cuneo, Moresi (concurring, but not signing)

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 5, 2009

Medical Treatment-Notice of Injury to Employer-WCAB reversed WCJ's finding that defendant was liable under Labor Code § 5402(c) for lien in connection with medical treatment provided to applicant alleging industrial injury through 2/2003 because defendant had notice of applicant's injury but did not provide applicant with a claim form pursuant to Labor Code § 5401(a), and held that employer's liability for medical treatment pursuant to Labor Code § 5402(c) does not arise until day after employee actually files a claim form with employer, and that defendant in this case was not liable for medical treatment lien because applicant never filed a claim form with defendant and lien claimant did not prove elements of equitable estoppel so as to preclude defendant from asserting applicant's failure to file a claim form as a defense to liability under Labor Code § 5402(c). [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 5.05[3][a], 24.01[4].]

Jeffrey Franklin, Applicant v. San Juan Unified School District, PSI, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 511

W.C.A.B. No. ADJ 1567874 (SAC 0256813)-WCJ Dudley R. Phenix (SAC); WCAB Panel: Commissioners Aghazarian, Lowe, Moresi

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 20, 2009

Medical Treatment-Chiropractic Visits-WCAB held that once per week chiropractic treatment was reasonably required to treat applicant's 2/28/1989 and 6/2/1994 industrial injuries to neck and back, and that chiropractor must prepare new treatment plan to specifically identify how many chiropractic visits are reasonable and necessary, when ACOEM Guidelines were silent on question of appropriate frequency of chiropractic care, utilization review reports were not persuasive in addressing applicable ACOEM Guidelines, and chiropractor had not prepared an updated treatment plan upon his receipt of 1/2007 diagnostic testing that could be further evaluated in the utilization review process. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 22.05[6][c].]

Rosita M. Carillo, Applicant v. Gardner Family Health Network Inc., State Compensation Insurance Fund, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 496

W.C.A.B. No. ADJ2568410 (SJO 0232956), ADJ1457908 (SJO 0232959)-WCJ Ellen K. Farmer (SJO); WCAB Panel: Commissioners Lowe, Cuneo, Brass

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 13, 2009

Medical Treatment-Chiropractic-Manipulation Under Anesthesia-WCAB affirmed WCJ's findings that, although chiropractic manipulation under anesthesia (MUA) is not supported by ACOEM Guidelines, MUA was reasonable and necessary to treat effects of injuries to applicant's spine, upper extremities and left hip suffered on 6/25/2001 and during period 5/2001 to 12/10/2001 pursuant to agreed medical evaluator's opinion, and that MUA was in scope of chiropractic treatment. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 5.01, 5.02[3A].]

Shirley Stuckey, Applicant v. County of Monterey, Liberty Mutual Insurance Company, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 555

W.C.A.B. No. ADJ3909259 (SAL 090140)-WCAB Panel: Commissioners Aghazarian, Lowe, Moresi (concurring, but not signing)

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 12, 2009

Medical Treatment-Home Health Care-WCAB held that there was no substantial evidence in record to support WCJ's finding that applicant/court secretary who was 82.25 percent permanently disabled from industrial injuries to back, spine and bilateral upper extremities/carpal tunnel during period through 10/26/95 and who developed renal failure allegedly from using non-steroidal anti-inflammatory medication for orthopedic injuries, was entitled to "24 hour" home health care provided by her husband commencing on 2/17/2004 and continuing, when (1) agreed medical evaluator's opinion upon which WCJ relied was inconclusive and based upon an incomplete medical history since agreed medical examiner did not review prescription records regarding applicant's use of non-steroidal anti-inflammatory medication, did not explain nexus between applicant's use medication, renal failure and need for home health care, and did not address nature, duration, medical necessity, or reasonableness home health care services, (2) no physician recommended 24-hour home health care, and (3) although applicant and her husband testified to applicant's need for home health care, there was no visit conducted at applicant's home by nurse case manager to corroborate the couple's testimony or to support finding of retroactive need for home health care services; WCAB remanded matter to WCJ for further development of record regarding necessity of home health care as well as commencement date, duration and appropriate rate for home health care services. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 5.02[6][b].]

W.C.A.B. No. ADJ1065558 (SFO 0508423)-WCAB Panel: Chairman Miller, Commissioners Aghazarian, Lowe

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 5, 2009

Penalties-Delay in Authorization of Medical Treatment-WCAB affirmed WCJ's award of a 25 percent penalty under Labor Code § 5814 for defendant's delay in authorizing epidural injections recommended by treating physician to treat applicant/nursing assistant's 2/21/2007 industrial back injury, when defendant's utilization review denial of treatment, although not determined to be untimely under Labor Code § 4610, was invalid because denial did not state name, specialty, telephone number, and hours of availability of reviewer as required under 8 Cal. Code Reg. § 9792.9(k), and WCAB found defendant's authorization of treatment one year after authorization was requested to be unreasonable, especially given agreed medical evaluator's opinion that epidural injections were reasonable medical treatment and treating physician's inclusion of epidural injections in applicant's treatment plan. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 10.40[1], [3][a], [c].]

Bradford Braun (Deceased), Akiko Braun (Widow), Applicant v Warner Brothers Consumer Products, PSI, administered by Warner Brothers Workers' Compensation, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 490

W.C.A.B. No. ADJ878472 (MON 0334515)-WCAB Panel: Deputy Commissioner Dietrich, Commissioners Cuneo, Moresi (concurring, but not signing)

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 5, 2009

Penalties-Delay in Payment of Award-Self-Assessed Penalties-WCAB, rescinding WCJ's 25 percent penalty award under Labor § 5814 for defendant's failure to pay Labor Code § 4650(d) increase, held that, under Leinon v. Fishermen's Grotto (2004) 69 Cal. Comp. Cases 995 (Appeals Board en banc opinion), Labor Code § 4650(d) did not apply to defendant's payment of award made within 14 days of denial of its petition for writ of review, as Labor Code § 4650(d) does not apply when injury or benefits are disputed. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 10.40[1], 27.12[2].]

Gina Malcolm, Applicant v. Kelly Staff Leasing, CNA, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 530

W.C.A.B. No. ADJ 481283 (MON 0323982)-WCJ Gail E. Babcock (MON);WCAB Panel: Commissioners Caplane, Cuneo, Brass

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed September 28, 2009

Penalties-Delay in Providing Supplemental Job Displacement Benefits-WCAB held applicant was not entitled to Labor Code § 5814 penalty and applicant's attorney was not entitled to attorney's fees pursuant to Labor Code § 5814.5 as there was no refusal by defendant to provide Notice of Supplemental Job Displacement Voucher in amount of $6,000 and such payment was not unreasonably delayed, when issue of job displacement voucher was not raised at trial that resulted in 3/26/2008 award, AME report of 7/13/2006 stated that applicant had returned to work and was introduced into evidence at first trial without objection, no testimony was offered at 7/7/2009 trial regarding applicant not having returned to work, defendant issued voucher on 1/29/2009 within 60-day period required by Labor Code § 4648.5 after receiving 12/8/2008 letter from applicant's counsel asserting entitlement to voucher, and applicant failed to return standard form that accompanied voucher to claims administrator for reimbursement, thereby lending support to defendant's reasonable assumption that applicant had returned to work. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 10.40, 35.110.]

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed November 9, 2009

Permanent Disability-Apportionment-WCAB held that substantial medical evidence and Disability Evaluation Unit rating supported WCJ's finding under 1997 Schedule for Rating Permanent Disability that applicant/park superintendent sustained industrial injury to his right and left knees, spine, and psyche on 1/20/1998, causing 63 percent permanent disability after apportionment, when WCJ accurately instructed rating specialist both as to applicant's orthopedic and psychiatric condition and on issue of apportionment consistent with substantial medical reporting relied upon, and when recommended rating by Disability Evaluation Unit was within range of evidence. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 8.05[1]-[3], 8.06[1], [4], [5]; The Lawyer's Guide to the AMA Guides and California Workers' Compensation, Ch. 7.]

Alejandro Alvarado, Applicant v. Champion Fire Protection, State Compensation Insurance Fund, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 479

W.C.A.B. No. ADJ68244070-WCAB Panel: Commissioners Cuneo, Lowe, Deputy Commissioner Sullivan

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed December 17, 2009

Permanent Disability-Rating-Diminished Future Earning Capacity-WCAB granted defendant's petition for removal from WCJ's Order instructing defendant to produce evidence to allow analysis under Ogilvie v. City and County of San Francisco (2009) 74 Cal. Comp. Cases 1127 (Appeals Board en banc opinion) as it pertained to adequacy of compromise and release under which applicant/fire sprinkler fitter with 11/2/2007 injury to right wrist and ribs sought to settle his claim for permanent disability based upon panel qualified medical evaluator's (QME) report rated at 20 percent, when WCAB found that Ogilvie, which sets forth method by which party may rebut diminished future earning capacity (DFEC) portion of 2005 Permanent Disability Rating Schedule, places burden of rebutting a scheduled permanent disability rating on party disputing rating, that defendant did not have burden of producing evidence to rebut QME report, and that pending determination of adequacy of compromise and release based upon existing record, WCJ's Order requiring defendant to obtain information on Ogilvie issue was premature. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 8.02[3], [4][a], 32.01[3][a][ii], [d], 32.02[2][a], 32.03A; The Lawyer's Guide to the AMA Guides and California Workers' Compensation, Chs. 2-6.]

Martin Ayala, Applicant v. Fulton Processors, Inc., State Compensation Insurance Fund, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 480

W.C.A.B. Nos. ADJ 3843443 (SRO 0123750), ADJ 994170 (SRO 0123751)-WCAB Panel: Commissioners Lowe, Cuneo, Aghazarian

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 19, 2009

Permanent Disability-Apportionment-New and Further Permanent Disability-WCAB, rescinding WCJ's Findings, Award and Orders and returning matter to trial level for further development of medical record, held that WCJ's recalculation of 2/28/2005 prior stipulated award of 50 percent permanent disability for applicant/loading dock worker's industrial injuries to his back during period 6/3/2002 through 12/6/2002 was error when medical evidence in the record was inconsistent and premised on inaccurate facts, and, therefore, did not constitute substantial evidence to support award, and when 2/28/2005 stipulated 50 percent permanent disability award was final, making it impermissible under Labor Code §§ 4663 and 4664 for WCJ to look back into prior award, attempt to reconstruct the parties' agreement, and recalculate the level of permanent disability. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 26.10[2].]

Joey Barela, Applicant v. Leprino Foods, PSI, administered by Matrix Absence Management, Inc., Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 482

W.C.A.B. No. ADJ3226482 (FRE 0237862)-WCAB Panel: Commissioners Cuneo, Brass, Moresi

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed September 25, 2009

Permanent Disability-Rating-AMA Guides-WCAB, affirming WCJ's finding that applicant's 8/31/2005 low back injury caused 34 percent permanent disability without apportionment, held that WCJ properly determined applicant's level of permanent disability in accordance with Labor Code § 4660 by using AMA Guides and 2005 Permanent Disability Rating Schedule (2005 Schedule), that defendant did not rebut permanent disability rating under 2005 Schedule and that, although defendant refused to authorize surgery based upon utilization review and agreed medical evaluator's opinion that surgery was not warranted, WCJ did not incorrectly consider effects of applicant's self-procured lumbar surgery in rating permanent disability because after surgery was performed agreed medical evaluator concluded surgery was reasonable medical treatment as it relieved symptoms of applicant's injury. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 8.02[3], [4][a], 22.06[2][b], 32.03A; The Lawyer's Guide to the AMA Guides and California Workers' Compensation, Ch. 2-6.]

Reggie D. Barlow, Applicant v. Oakland Raiders, Ward North America, Tampa Bay Buccaneers, ESIS Jacksonville Jaguars, ESIS Chatsworth, Risk Enterprise 2314 Brea, ACE, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 483

W.C.A.B. No. ADJ701327 (ANA 0388262)-WCAB Panel: Commissioners Cuneo, Brass, Aghazarian

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed November 9, 2009

Permanent Disability-Application of 1997 Schedule for Rating Permanent Disabilities-WCAB held that, pursuant to exception in Labor Code § 4660(d), 1997 Schedule for Rating Permanent Disabilities rather than 2005 Permanent Disability Rating Schedule applied to rate permanent disability resulting from injuries to applicant's neck, back, left shoulder, knees, lower extremities, right ankle, right great toe, head and neurological systems suffered while applicant played professional football during period 5/28/96 through 3/3/2004, because applicant was entitled to notice required by Labor Code § 4061 due to period of temporary disability in 2001; WCAB found that even though applicant was not paid temporary disability, he should have received Labor Code § 4061 notice upon the end of his salary continuation benefits. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 8.02[4][a], 32.01[3][a], [c], 32.03; The Lawyer's Guide to the AMA Guides and California Workers' Compensation, Ch. 2-6.]

Steven Bowden, Applicant v. Sunray Termite Control, Inc., National Liability and Fire, Adjusted by Berkshire Hathaway, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 489

W.C.A.B. No. ADJ4536632 (SJO 0263192)-WCAB Panel: Commissioner Moresi, Deputy Commissioner Dietrich, Commissioner Aghazarian

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed December 21, 2009

Permanent Disability-Rating-Diminished Future Earning Capacity-WCAB, amending Findings, Award and Order in which WCJ applied factors in Ogilvie v. City and County of San Francisco (2009) 74 Cal. Comp. Cases 1127 (Appeals Board en banc opinion) to find that applicant's 11/10/2006 low back injury caused 44 percent permanent disability after upward adjustment, deferred issue of whether applicant successfully rebutted scheduled permanent disability rating with regard to diminished future earning capacity (DFEC) factors pending a final appellate determination in Ogilvie, and made interim award of permanent disability benefits based upon 26 percent permanent disability stipulated to by parties in event Ogilvie factors were inapplicable. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 8.02[3], [4][a], 32.01[3][a][ii], [d], 32.02[2][a], 32.03A; The Lawyer's Guide to the AMA Guides and California Workers' Compensation, Chs. 2-6.]

Maria Campos, Applicant v. Cola/Martin Luther King Hospital #125 c/o Tristar Risk Management, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 494

W.C.A.B. No. ADJ288780 (LAO 0859849)-WCJ George C. Reny (LAO); WCAB Panel: Commissioners Lowe, Aghazarian, Brass

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed November 12, 2009

Permanent Disability-Apportionment-WCAB affirmed WCJ's finding that there was no basis for apportionment of applicant's 100 percent permanent disability caused by industrial psychiatric and gastrointestinal injuries during period 2000 through 9/13/2004, when agreed medical evaluator's opinion that 10 percent of applicant's psychiatric disability should be apportioned to defendant's good-faith personnel actions did not constitute substantial evidence to justify apportionment because evaluator's apportionment was based on incorrect legal theory in that evaluator confused concepts of industrial causation and apportionment of permanent disability, Labor Code § 3208.3 was not intended to be utilized as means of apportioning permanent disability, and WCAB found defendant did not meet burden of proving apportionment under Labor Code § 5705. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 8.05[1]-[3], 8.06; The Lawyer's Guide to the AMA Guides and California Workers' Compensation, Ch. 8.]

Virginia Cocio, Applicant v. Mountain View School District, Defendant, 2009 Cal. Wrk. Comp. P.D. LEXIS 498

W.C.A.B. Nos. ADJ3051297 (SJO 0266175), ADJ2527197 (SJO 231549)-WCAB Panel: Commissioners Caplane, Cuneo, Moresi

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed September 24, 2009

Permanent Disability-Apportionment Between Two Injuries-Contribution Proceedings-WCAB, in Labor Code § 5500.5 contribution proceeding, held that liability for permanent disability resulting from industrially-related hernias suffered by applicant/food service worker during cumulative periods 9/23/96 through 9/23/97 and 11/29/99 and 11/29/2000, should be divided equally between California Insurance Guarantee Association (CIGA), on behalf of insolvent carrier with liability for applicant's first cumulative injury, and solvent carrier with liability for applicant's later period of cumulative trauma, when permanent disability could not be apportioned between applicant's two injuries, justifying a single, combined permanent disability award pursuant to Benson v. The Permanente Medical Group (2007) 72 Cal. Comp. Cases 1620 (Appeals Board en banc opinion) (affirmed by Benson v. The Permanente Medical Group (2009) 170 Cal. App. 4th 1535, 74 Cal. Comp. Cases 113) and, absent authority addressing issue of how to apportion liability between CIGA and solvent carrier in a contribution proceeding when disability is not apportionable, WCAB followed agreed medical evaluator's recommendation, which was found to be logical and medically correct, by apportioning liability based upon duration of each of applicant's cumulative trauma periods, resulting in equal division of liability between CIGA and solvent carrier given two one-year cumulative trauma periods. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 8.05[1], [2][c], [3], 8.06[5][d], 8.07[2], 31.13[2]; The Lawyer's Guide to the AMA Guides and California Workers' Compensation, Ch. 7.]

Permanent Disability-Apportionment to Non-industrial Factors-WCAB affirmed WCJ's finding in contribution proceeding that there was no justification for Labor Code § 4663 apportionment of applicant's 37 percent permanent disability caused by applicant/food service worker's industrially-related hernias suffered during cumulative periods 9/23/96 through 9/23/97 and 11/29/99 through 11/29/2000, when agreed medical evaluator's opinion did not constitute substantial evidence under standards set forth in Escobedo v. Marshall (2005) 70 Cal. Comp. Cases 604 (Appeal's Board en banc opinion) to support apportionment to non-industrial factors because evaluator did not explain basis for his conclusion, did not explain nature of apportionable disability, and failed to address how and why other factors caused disability and why those factors caused 75 percent disability as opposed to some other percent. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 8.05[1], [2][c], [3]; The Lawyer's Guide to the AMA Guides and California Workers' Compensation, Ch. 7.]

Alma Crandell, Applicant v. Antioch Unified School Dist, Contra Costa Schools Pleasant Hill, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 500

W.C.A.B. No. ADJ4008258 (OAK 0326235)-WCJ Joan Succa (OAK); WCAB Panel: Commissioners Lowe, Cuneo, Brass

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 14, 2009

Permanent Disability-Apportionment-WCAB affirmed WCJ's finding that, pursuant to presumption in Labor Code § 4662(c) and based upon treating physicians' reports as well as witness testimony, applicant/head custodian was 100 percent permanently disabled as a result of a brain injury which occurred during surgery for applicant's 11/28/2004 spinal injury, with no basis for apportionment to orthopedic disabilities under Sanchez v. County of Los Angeles (2005) 70 Cal. Comp. Cases 1440 (Appeals Board en banc opinion). [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 8.05[1]-[3], 8.06[5], 8.07[2][a]-[c].]

Marilou Gervacio, Applicant v. Mission Linen Supply, Security Insurance Co. of Hartford, successor in interest to Fire & Casualty Insurance Co. of Connecticut, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 513

W.C.A.B. Nos. ADJ2101268 (SAL 0106967)-WCJ Daniel H. Asturias (SAL); WCAB Panel: Commissioners Lowe, Cuneo, Moresi

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 15, 2009

Permanent Disability-Vocational Rehabilitation Expert Testimony-WCAB held that evidence of rehabilitation or non-feasibility for rehabilitation is relevant and admissible to determine applicant's loss of earning capacity and/or ability to compete in open labor market, when WCAB found that Applicant sustained admitted industrial injury to her cervical spine and psyche on or about 8/2/2003, that injury caused 100-percent permanent disability, based on 9/13/2004 report of qualified medical evaluator, which enabled applicant's permanent disability to be determined pursuant to 1997 Schedule for Rating Permanent Disabilities, and on opinion of agreed medical evaluator, that Weiner v. Ralphs Company (2009) 74 Cal. Comp. Cases 958 (Appeals Board en banc opinion), which held that WCAB no longer had jurisdiction to determine rights and obligations of employee or employer with respect to former Labor Code § 139.5, did not determine that vocational expert testimony is inadmissible for determination of feasibility of injured worker for retraining, and that agreed vocational evaluator concluded that applicant was not feasible for rehabilitation. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d Ch. 35, Special Alert.]

Alfredo Lomeli, Applicant v. Environmental Service Products, Inc., State Compensation Insurance Fund, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 528

W.C.A.B. No. ADJ 839194 (STK 0169986)-WCAB Panel: Commissioners Cuneo, Lowe, Aghazarian

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 20, 2009

Permanent Disability-Rating-Range of Evidence-WCAB reversed WCJ and found applicant's 3/20/2001 industrial injury to head and psyche while employed as a welder, in which he was struck in the head, rendered unconscious, and thereafter diagnosed with severe post-traumatic head syndrome, vertigo, and posttraumatic headaches, caused 82 percent permanent disability; WCAB held that while a finding regarding extent of permanent disability may be based on range of medical evidence, it is improper to rely on medical opinion that the disability is entirely nonindustrial to support a range of evidence determination, and, therefore, WCJ erroneously included defendant's psychiatric QME's opinion in range of evidence regarding extent of applicant's permanent disability, when QME concluded that applicant's psychiatric condition was not industrially caused. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 8.02, 32.06[1], 34.16[3].]

Randall Neitzke, Applicant v. County of Los Angeles, PSI, Defendant, 2009 Cal. Wrk. Comp. P.D. LEXIS 538

W.C.A.B. No. ADJ2352341 (VNO 0508022)-WCJ David L. Pollak (VNO); WCAB Panel: Commissioner Lowe, Chairman Miller, Commissioner Moresi

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 13, 2009

Permanent Disability-Application of 2005 Permanent Disability Rating Schedule-WCAB affirmed WCJ's finding that 2005 Permanent Disability Rating Schedule (2005 Schedule) applied to rate permanent disability resulting from applicant/deputy sheriff's 6/21/2004 admitted industrial left knee injury, when there was no indication from a treating physician that applicant's condition was permanent and stationary or that applicant had suffered any permanent disability prior to 1/1/2005 so as to justify application of 1997 Schedule for Rating Permanent Disabilities (1997 Schedule) pursuant to Labor Code § 4660(d), and WCAB found that operative reports and diagnostic studies alone indicating existence of permanent disability could not be relied upon without corroborating medical opinion from a physician. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 8.02[4][a], 32.01[3][a], [d], 32.03A; The Lawyer's Guide to the AMA Guides and California Workers' Compensation, Ch. 2-7.]

Steve Olson, Applicant v. State of California/CDCR, California Medical Facility, legally uninsured, adjusted by State Compensation Insurance Fund, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 539

W.C.A.B. No. ADJ2205387 (SAC 0316687)-WCAB Panel: Commissioners Cuneo, Moresi, Deputy Commissioner Dietrich

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 26, 2009

Permanent Disability-Apportionment-Prior Awards-Overlap-WCAB, rescinding WCJ's decision, held that WCJ improperly apportioned permanent disability stemming from applicant/correctional lieutenant's injury to his heart and in forms of hypertension, diabetes and gastroesophageal disorder during cumulative period through 4/8/2002, when WCJ incorrectly re-rated applicant's earlier stipulated award of permanent disability for hypertension through 7/9/92 based upon his understanding of an emotional stress preclusion that he applied to apportion a larger percentage of permanent disability (20-1/4 percent) than the 15-1/4 percent permanent disability previously awarded, and WCAB found that WCJ's approach was contrary to Labor Code § 4664(b) which only allows apportionment based on "prior award" of permanent disability and does not authorize re-calculation of prior permanent disability to a higher percentage than was previously awarded, that WCJ failed to consider defendant's burden of proving overlap under Labor Code § 4664 and Kopping v. W.C.A.B. (2006) 142 Cal. App. 4th 1099, 48 Cal. Rptr. 3d 618, 71 Cal. Comp. Cases 1229, and that, here, defendant did not meet burden of proving overlap because there was not substantial evidence establishing factors of disability relied upon in calculating earlier stipulated award. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 8.05[1]-[3], 8.06[5][d], 8.07[2][a]-[c]; The Lawyer's Guide to the AMA Guides and California Workers' Compensation, Ch. 7.]

James B. Ott, Applicant v. City of Anaheim, PSI, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 542

W.C.A.B. Nos. ADJ 4088637 (RIV 0053165), ADJ 622123 (RIV 0068585)-WCJ Tracy L. Hughes (RIV); WCAB Panel: Commissioners Cuneo, Caplane, Brass

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 21, 2009

Permanent Disability-Apportionment-WCAB held that applicant/firefighter incurred one cumulative trauma injury that caused 100 percent permanent disability as a result of industrial injuries to his hearing, bilateral carpal tunnel, heart, right shoulder, low back, right foot, and pulmonary system, as set forth in his 3/13/2003 claim, and industrial injury in the form of cancer, as set forth in his 4/28/2005 claim, when applicant's injurious exposure for all of his industrial conditions ended 1/18/2003, the date he stopped working; WCAB held that any stipulation by the parties regarding use of AMA Guides and 2005 PDRS did not preclude a finding of one cumulative trauma injury, when law regarding apportionment of permanent disability between separate injuries changed following the parties' stipulation; WCAB distinguished Benson v. Permanente Medical Group (2009) 170 Cal. App. 4th 1535, 89 Cal. Rptr. 3d 166, 74 Cal. Comp. Cases 113, and held that when there is only one period of injurious exposure that caused the injured body parts and cancer, permanent disability resulting from those injured body parts and cancer is appropriately addressed through a single award. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 8.07[2][d][ii], [iii]; The Lawyer's Guide to the AMA Guides and California Workers' Compensation, Ch. 2.]]

Edgar Sanchez, Applicant v. Flying J, Zurich American Insurance Company, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 551

W.C.A.B. Nos. ADJ2807540 (BAK 0151598), ADJ724628 (BAK 0151599)-WCJ Robert K. Norton (BAK); WCAB Panel: Commissioners Brass, Cuneo, Lowe

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed November 10, 2009

Permanent Disability-Rating-AMA Guides-WCAB upheld WCJ's finding that permanent disability resulting from applicant/mechanic's 10/8/2004 lumbar spine injury was properly rated using Range of Motion (ROM), rather than Diagnosis Related Estimate (DRE), method of AMA Guides pursuant to opinion of agreed medical evaluator, when agreed medical evaluator opined that ROM method resulted in a more accurate assessment of applicant's permanent disability, and WCAB found that (1) even if strict interpretation of AMA Guides requires use of DRE method to evaluate spinal impairment, agreed medical evaluator, taking into account nature of applicant's injury, had discretion to use any part of AMA Guides that most accurately reflected applicant's impairment, (2) contrary to defendant's contention, nothing in AMA Guides prohibited agreed medical evaluator from using ROM method when applicant had multi-level spinal disc protrusions without disc herniations, (3) when either DRE method or ROM method can be appropriately applied, physicians can choose method which produces the higher rating, and (4) consultative rating from DEU specialist indicating that parties should consider obtaining a DRE-based rating from agreed medical evaluator was neither binding nor admissible as evidence pursuant to 8 Cal. Code Reg. § 10166(b), and did not carry same weight as opinion of agreed medical evaluator. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 8.02[1]-[4], 32.02[1], [2], 32.03A; The Lawyer's Guide to the AMA Guides and California Workers' Compensation, Ch. 2-6.]

Thomas Vigil, Applicant v. San Diego Unified School District, PSI, SCRMA, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 557

W.C.A.B. No. ADJ3639705 (SDO 0351917)-WCAB Panel: Commissioners Brass, Caplane, Aghazarian

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 1, 2009

Permanent Disability-Apportionment-Overlap-WCAB held that defendant failed to meet burden of proving apportionment under Labor Code § 4664 and Kopping v. W.C.A.B. (2006) 142 Cal. App. 4th 1099, 48 Cal. Rptr. 3d 618, 71 Cal. Comp. Cases 1229 of permanent disability resulting from applicant/lead iron worker's lumbar spine/low back injury during period 12/13/2005 through 12/13/2006, based upon two prior 22 percent permanent disability awards for 7/7/2003 cervical spine injury and 7/2/98 lumbar spine injury, when applicant's 1998 and 2003 injuries were rated using 1997 Schedule for Rating Permanent Disabilities (2007 Schedule) and cumulative injury was rated under AMA Guides, and agreed medical evaluator's report, which failed to convert applicant's prior permanent disability to AMA Guides impairment, did not constitute substantial evidence to establish overlap between applicant's specific injuries and his subsequent cumulative injury. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 8.05[1]-[3], 8.06[5][d], 8.07[2]; The Lawyer's Guide to the AMA Guides and California Workers' Compensation, Ch. 7.]

Permanent Disability-Apportionment-Prior Industrial Injuries-WCAB held that agreed medical evaluator's opinion did not constitute substantial evidence under Escobedo v. Marshalls (2005) 70 Cal. Comp. Cases 604 (Appeals Board en banc opinion) to support Labor Code § 4663 permanent disability resulting from applicant/lead iron worker's lumbar spine/low back injury during period 12/13/2005 through 12/13/2006, and remanded matter for further development of medical record by way of supplemental reports from agreed medical evaluator and for WCJ to consider whether prior industrial injuries suffered by applicant constitute "other factors" for purposes of apportionment under Labor Code § 4663(c). [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 8.05[1]-[3], 8.06[5]; The Lawyer's Guide to the AMA Guides and California Workers' Compensation, Ch. 7.]

W.C.A.B. No. ADJ 2893157 (SRO 0139272)-WCJ Michael J. Hurley (SRO);WCAB Panel: Commissioners Cuneo, Aghazarian, Chairman Miller

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed November 9, 2009

Petitions for Reconsideration-Final Order-WCAB dismissed defendant's Petition for Reconsideration, when WCJ's order for further development of record by panel QME did not constitute a final order within meaning of Labor Code § 5900. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 28.04.]

W.C.A.B. No. ADJ 2449722 (SJO 0197502)-Arbitrator Francis v. Clifford; WCAB Panel: Commissioners Lowe, Caplane, Brass

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed November 10, 2009

Petitions to Reopen-New and Further Disability-WCAB held that applicant/animal technician's 12/1/95 injuries to left foot and ankle, knees, upper extremities, and psyche, in which defendant stipulated applicant's permanent disability was 58 percent, caused a new period of temporary disability during the period 9/27/2000 to 2/19/2004, 100 percent permanent disability, and need for future medical care, when 2/25/2000 qualified medical reevaluation concluded that applicant was 100 percent disabled, evidence demonstrated that additional body parts were subsequently injured as compensable consequences of original injury, resulting in increased disability, applicant's worsened condition caused increase in subjective factors of disability, yielding higher permanent disability rating under 1997 Schedule for Rating Permanent Disability, and WCAB retained jurisdiction to award temporary disability when new period of temporary disability began within five years of date of injury. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 24.03[3], [4], 31.05.]

W.C.A.B. No. ADJ 595589 (LAO 0868796)-WCAB Panel: Commissioners Cuneo, Lowe, Deputy Commissioner Dietrich

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed November 10, 2009

Presumption of Compensability-WCAB affirmed WCJ's finding that record did not support application of presumption of compensability under Labor Code § 5402(b), when applicant did not place into evidence a claim form showing the date it was filed, copy of claim form attached to application for adjudication of claim filed 6/19/2006 included no indication that claim form was ever filed with defendant, affidavit of service attached to application states that application was not served until 10/11/2006, and defendant's answer denying all liability was filed 11/29/2006, which was within 90 days of date application was served. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 24.01[4].]

W.C.A.B. No. ADJ1498752 (MON 0303597)-WCJ Gilbert Katen (MON); WCAB Panel: Commissioners Lowe, Brass, Cuneo

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed November 9, 2009

Psychiatric Injuries-Burden of Proof-WCAB affirmed WCJ's finding that opinion of agreed medical evaluator in psychiatry constituted substantial evidence to support finding that applicant/computer keyboard operator who suffered cumulative injuries during period 8/5/95 through 12/16/2002 to bilateral hands, wrists, upper extremities, neck and in forms of hypertension and aggravation of diabetes, did not sustain psychiatric injury predominantly caused by industrial injury and that applicant did not meet burden of proving that she suffered a psychiatric injury. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 4.02[3][a]-[c], 4.05[2][d], 4.69[3].]

W.C.A.B. No. ADJ1065558 (SFO 0508423)-WCAB Panel: Chairman Miller, Commissioners Aghazarian, Lowe

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 5, 2009

Sanctions-WCAB rescinded WCJ's award of Labor Code § 5813 sanctions for defendant's one year delay in authorizing medical treatment recommended by treating physician to treat applicant/nursing assistant with 2/21/2007 industrial back injury, and held that sanctions were not appropriate because treating physicians request for authorization of medical treatment was sent to incorrect address and was not clearly identified, defendant eventually issued a utilization review denial of treatment, albeit invalid, and there was no showing that defendant's delay in providing medical treatment was done in bad faith, was frivolous, or was solely intended to cause unnecessary delay. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 23.15, 27.01[8][a].]

Alexander Houston, Applicant v. Western Security, Inc., State Compensation Insurance Fund, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 523

W.C.A.B. Nos. ADJ4400200 (VNO 0501235), ADJ2300175 (VNO 0501240)-WCAB Panel: Commissioners Lowe, Aghazarian, Brass

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 28, 2009

Sanctions-WCAB, on its own motion, removed matter to itself and, absent a showing of good cause, imposed sanctions in sum of $1,000.00 under Labor Code § 5813 and 8 Cal. Code § 10561 on attorney for applicant/security guard with alleged cumulative trauma to his hip and legs over period ending 4/25/2002, and from 5/2002 to 5/7/2003, when applicant's attorney secured ex parte order awarding attorney's fees on an inappropriate "walk-through" basis without prior notice and without disclosing to WCJ that her prior request for attorney's fees had been denied by a different WCJ two weeks earlier, and WCAB found that (1) applicant's attorney impermissibly engaged in "judge-shopping" by circumventing one WCJ's unfavorable ruling to obtain a more favorable ruling by another WCJ, (2) in bringing an unauthorized request for attorney's fees to WCJ on a "walk-through" basis without notice to her client or defendant and without providing full explanation of facts to WCJ, applicant's attorney violated Rules of Court Administrator (8 Cal. Code § 10280(d), (h)), and acted in bad faith so as to justify imposition of sanctions, and (3) applicant's attorney's explanation that it was the conduct of her paralegal and secretary which led to "walk-through" request for attorney's fees without her knowledge, did not constitute good cause to avoid imposition of sanctions. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 23.15, 27.01[8][a].]

Pierre Palengat, Applicant v. The Town of Hillsborough, PSI, Defendant, 2009 Cal. Wrk. Comp. P.D. LEXIS 429

W.C.A.B. No. ADJ514225 (SJO 0135271)-WCAB Panel: Commissioners Cuneo, Moresi, Lowe

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 26, 2009

Sanctions-False Statements-WCAB, after removing case to itself and issuing Notice of Intention to impose a $750.00 sanction on defense counsel under Labor Code § 5813 and 8 Cal. Code Reg. § 10561 for making false statements of fact in his verified Petition for Reconsideration with regard to whether applicant objected to utilization review denial of medical treatment, declined to impose sanctions when, having reviewed defense counsel's verified response to notice of intent to impose sanction, WCAB found that "other circumstances" existed so as to make imposition of sanction unjust under 8 Cal. Code Reg. § 10561 because defendant explained that he made untrue statements in good faith without having access to the main file which included applicant's objection to utilization review denial, and apologized to WCAB for making statements. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 23.15, 27.01[8][a].]

W.C.A.B. No. ADJ 3495329 (SFO 0461473)-WCJ Gene M. Lam (SFO);WCAB Panel: Commissioners Brass, Lowe, Aghazarian

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed November 9, 2009

Serious and Willful Misconduct by Employer-WCAB affirmed WCJ's finding of serious and willful misconduct by defendant employer, when defendant's manager delegated general discretionary control over crane disassembly operation to crane operator, who failed to place blocks underneath boom section of crane before removing bottom pin, which led to boom falling on applicant's right lower extremity, and such conduct was serious and willful in that it placed applicant in dangerous situation without taking safety measures and/or there was a violation of safety order pursuant to 8 Cal. Code Reg. § 4992. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 10.01.]

W.C.A.B. No. ADJ1481824 (LAO 0847790)-WCJ Howard Lemberg (LAO); WCAB Panel: Commissioners Cuneo, Brass, Chairman Miller

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 29, 2009

Settlements-Compromise and Release Agreements-Timeliness of Payment-WCAB affirmed WCJ's finding that defendant timely paid settlement funds to applicant/janitor with 7/5/2004 industrial injuries pursuant to terms of compromise and release agreement, under which applicant waived right to claim a penalty if settlement funds were paid within 30 days of defendant's receipt of Order Approving Compromise and Release (OACR), when defendant mailed settlement check 30 days after receiving OACR and WCAB found that, under Labor Code § 4651(a), payment of settlement monies was made on date check was mailed, rather than on date it was received by applicant. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 29.04[6].]

W.C.A.B. No. ADJ4698232 (RIV 0076516)-WCAB Panel: Commissioners Aghazarian, Cuneo, Lowe

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed November 3, 2009

Statute of Limitations-Cumulative Injury-WCAB held that CIGA's claim that applicant sustained cumulative injury was not barred by statute of limitations, when elements of Labor Code § 5412 had not yet occurred in that there was no medical reporting specifically addressing issue of whether applicant sustained cumulative injury while caring for his wife, applicant denied he was injured while caring for his wife and, thus, had no knowledge of a cumulative trauma injury, and there were no apparent circumstances that would justify imputing such knowledge to him. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 24.01, 24.02, 24.03[1], [7].]

Barbara Santos, Applicant v. County of Santa Barbara, PSI, Defendant, 2009 Cal. Wrk. Comp. P.D. LEXIS 552

W.C.A.B. No. ADJ2919812 (SBA 0083997)-WCAB Panel: Commissioners Lowe, Aghazarian, Cuneo (concurring, but not signing)

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 5, 2009

Statute of Limitations-Estoppel-Employer's Failure to Provide Notice-WCAB affirmed WCJ's finding that defendant was estopped from asserting Labor Code § 5405 statute of limitations as a defense to applicant/communications dispatcher's claim for industrial cumulative injuries to psyche and internal system, and in form of headaches, depression and fibromyalgia ending on 11/10/2006, notwithstanding that defendant provided applicant with CWCI pamphlet, when WCAB found that CWCI pamphlet was inadequate to provide applicant with requisite notice regarding time period within which to file a claim, that under 8 Cal. Code Reg. § 9882(b) defendant was required to provide applicant with specific notices, including written information, explaining time limits to file a claim, and that defendant's failure to provide proper notice tolled statute of limitations. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 24.04[1], [5], [6]

W.C.A.B. No. ADJ717766 (SJO 0251442)-WCJ Patrick K. Wickler; WCAB Panel: Commissioners Caplane, Aghazarian, Brass

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 20, 2009

Subsequent Injuries Benefits Trust Fund-Threshold Requirements for Eligibility-WCAB upheld WCJ's finding that applicant/product demonstrator who suffered 9/11/2004 right shoulder injury did not meet threshold for Subsequent Injuries Benefits Trust Fund (SIBTF) eligibility under Labor Code § 4751, when evidence in record did not support a finding that applicant's industrial injury alone caused at least 35 percent disability, nor did evidence support a finding that applicant had disability or impairment to her left minor extremity (opposite and corresponding member to industrially injured member) on 9/11/2004 from pre-existing kidney disease which required that applicant undergo hemodialysis through a shunt in her left arm. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 8.09, 31.20[4].]

Jeremy Gunderson, Applicant v. Airport Home Appliance, Mid-Century Insurance Company, Subsequent Injuries Benefits Trust Fund, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 517

W.C.A.B. No. ADJ1916680 (SJO 0260827)-WCAB Panel: Commissioners Cuneo, Brass, Lowe

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 27, 2009

Subsequent Injuries Benefits Trust Fund-Threshold Requirements for Eligibility-WCAB, reversing WCJ's award against Subsequent Injuries Benefits Trust Fund (SIBTF) and WCJ's finding that applicant/salesperson's condition met threshold requirements of Labor Code § 4751, held that applicant did not present substantial medical evidence that he met threshold requirements of Labor Code § 4751 by incurring a subsequent lumbar spine injury on 12/24/2005 that affected an "opposite and corresponding member" as required by Labor Code § 4751 and did not prove by substantial evidence that he had a prior partial disability on 12/24/2005 caused by injury to his leg that would have supported an independent award of workers' compensation benefits if it had been work related. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 8.09, 31.20[4].]

W.C.A.B. Nos. ADJ1018094 (SFO 0506934), ADJ1325615 (SFO 0504597)-WCJ Larry W. Quan (SFO); WCAB Panel: Commissioners Aghazarian, Lowe, Moresi (concurring, but not signing)

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 7, 2009

Temporary Disability-Two-Year Limitation on Temporary Disability Indemnity-WCAB held that WCJ erred in finding that applicant/dining room service attendant with 3/26/2006 industrial injuries to head, neck and bilateral shoulders and 8/24/2006 industrial injuries to neck, spine, right upper extremity and left lower extremity was entitled to temporary disability indemnity beyond 104-week period set forth in Labor Code § 4656(c)(1) due to defendant's alleged delay in authorizing applicant's participation in SPARCmed functional restoration program, when WCAB found that extension of temporary disability indemnity beyond period allowed in Labor Code § 4656(c)(1) was not an appropriate remedy for defendant's alleged delay in providing applicant with functional capacity program, and that applicant could seek Labor Code § 5814 penalties as a remedy for defendant's alleged delay. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 7.02[1].]

Corey Murphy, Applicant v. Blue Mountain Air, Liberty Mutual Insurance Company, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 537

W.C.A.B. No. ADJ3875296 (SRO 0140946)-WCAB Panel: Chairman Miller, Commissioners Cuneo, Aghazarian

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed September 28, 2009

Temporary Disability-Two-Year Limitation on Temporary Disability Indemnity-Salary Continuation-WCAB rescinded WCJ's finding that salary continuation benefits paid by employer of applicant/sheet metal field worker with admitted right lower extremity injury and a staph infection on 2/27/2007 did not constitute temporary disability for purposes of two-year limitation on temporary disability indemnity under Labor Code § 4656(c), and, finding that record was incomplete, returned matter to trial level to further develop record regarding characterization of salary continuation benefits paid to applicant as set forth in either collective bargaining agreement or formal company policy documents. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 7.02[1].]

W.C.A.B. No. ADJ4402731 (VNO 0460581)-WCAB Panel: Commissioners Caplane, Brass, Lowe

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 28, 2009

Vocational Rehabilitation-Vocational Rehabilitation Maintenance Allowance-Repeal of Labor Code § 139.5-WCAB, rescinding WCJ's finding, held that Rehabilitation Unit's 12/29/2008 Determination that applicant/electrical craft helper with 4/28/99 industrial right upper extremity injury was entitled to vocational rehabilitation benefits was not a "final" order for purpose of creating a vested right on behalf of applicant to vocational rehabilitation benefits pursuant to Weiner v. Ralph's Company (2009) 74 Cal. Comp. Cases 736 (Appeals Board en banc opinion) (Weiner I) and Weiner v. Ralph's Company (2009) 74 Cal. Comp. Cases 958 (Appeals Board en banc opinion) (Weiner II ), because former Labor Code § 139.5 was repealed on 1/1/2009, before expiration of period within which defendant could have timely appealed RU's Determination and before Determination became final, thereby depriving WCAB of jurisdiction to award vocational rehabilitation benefits. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d Chapter 35, Special Alert, § 35.11[1], [3].]

Susan Dadvar, Applicant v. Regis Hairstylist, Atlantic Mutual Insurance Co., Adjusted by REM, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 502

W.C.A.B. Nos. ADJ3628897 (SJO 0253335), ADJ 1121410 (SFO 0462353)-WCJ Colleen S. Casey (SFO); WCAB Panel: Commissioners Cuneo, Caplane, Brass

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 14, 2009

Vocational Rehabilitation-Vocational Rehabilitation Maintenance Allowance-Repeal of Labor Code § 139.5-WCAB, rescinding WCJ's finding, held that applicant/hairstylist with cumulative injury to her bilateral upper extremities during period ending 12/27/2000 was not entitled to vocational rehabilitation maintenance allowance (VRMA) pursuant to Rehabilitation Unit's 10/15/2007 Determination, WCJ's 7/29/2008 decision affirming RU's Determination, or WCAB's 9/23/2008 order denying reconsideration, because orders were under appeal and had not become final for purpose of creating a vested right on behalf of applicant to vocational rehabilitation benefits prior to 1/1/2009 repeal of former Labor Code § 139.5 as required under Weiner v. Ralph's Company (2009) 74 Cal. Comp. Cases 736 (Appeals Board en banc opinion) (Weiner I), Weiner v. Ralph's Company (2009) 74 Cal. Comp. Cases 958 (Appeals Board en banc opinion) (Weiner II ), and Beverly Hilton Hotel v. W.C.A.B. (Boganim) (2009) 176 Cal. App. 4th 1597, 99 Cal. Rptr. 3d 50, 74 Cal. Comp. Cases 927, thereby depriving WCAB of jurisdiction to award vocational rehabilitation benefits; WCAB held that Court of Appeal's 1/8/2009 denial of defendant's petition for writ of review, issued one week after repeal of Labor Code § 139.5, had no legal effect because applicant's right to vocational rehabilitation benefits had not vested by that time. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d Chapter 35, Special Alert, § 35.11[1], [3].]

Susan Ferguson, Applicant v. Monterey Peninsula Country Club, Sedgwick CMS, administered by CIGA, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 508

W.C.A.B. No. ADJ4386818 (SAL 0091744), ADJ2744571 (SAL 0087231)-WCAB Panel: Commissioners Cuneo, Lowe, Brass

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed November 2, 2009

Vocational Rehabilitation-Sunsetting-WCAB held that when WCJ issued award on 10/7/2008 awarding applicant retroactive vocational rehabilitation maintenance allowance, defendant sought reconsideration, WCAB issued decision 12/11/2008 denying reconsideration, and defendant's right to appeal 12/11/2008 decision did not expire before 1/1/2009, applicant's right to vocational rehabilitation maintenance allowance did not vest, and the repeal of Labor Code § 139.5, effective 1/1/2009, operated to extinguish her inchoate right. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d Ch. 35, Special Alert.]

Rudy Gonzalez, Applicant v. Celite Corporation, National Union Fired Insurance Company, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 515

W.C.A.B. No. ADJ 3947517 (SBA 0084606)-WCJ Kelley R. Davis (SBA);WCAB Panel: Commissioners Brass, Caplane, Moresi (concurring, but not signing)

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed September 30, 2009

Vocational Rehabilitation-Sunsetting-Vested Rights-WCAB vacated 11/14/2008 Determination and Order of Rehabilitation Unit, which stated applicant was entitled to retroactive vocational rehabilitation maintenance allowance at his temporary disability indemnity rate for the period 6/2/2005 through 11/19/2006, because each party filed a timely appeal of the Rehabilitation Unit's determination, and applicant's disputed claim to such benefits was pending and not vested in a final order or award as of 1/1/2009, the effective date of the repeal of Labor Code § 139.5; WCAB held that defendant did not and could not waive issue of repeal of Labor Code § 139.5 by not raising it at trial, because subject matter jurisdiction over vocational rehabilitation issues cannot be conferred by waiver, estoppel, stipulation, or consent; WCAB further held that qualified injured worker status merely defines applicant as "medically eligible" and "vocational eligible", but was not final order or award for vocational rehabilitation benefits and services, including retroactive vocational rehabilitation maintenance allowance for any period of time. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d Ch. 35, Special Alert.]

William Henderson, Applicant v. State of California, SCIF State Employees Commerce, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 519

W.C.A.B. No. ADJ3704328 (LAO 0723622)-WCAB Panel: Commissioners Brass, Moresi, Chairman Miller

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed September 30, 2009

Vocational Rehabilitation-Vocational Rehabilitation Maintenance Allowance-Repeal of Labor Code § 139.5-WCAB, rescinding WCJ's finding, held that applicant/tree maintenance worker with 12/3/94 thoracic spine injury was not entitled to vocational rehabilitation maintenance allowance (VRMA) pursuant to Rehabilitation Unit's 9/9/2008 Determination, because Determination was under appeal and had not become final for purpose of creating a vested right on behalf of applicant to vocational rehabilitation benefits prior to 1/1/2009 repeal of former Labor Code § 139.5 as required under Weiner v. Ralph's Company (2009) 74 Cal. Comp. Cases 736 (Appeals Board en banc opinion), thereby depriving WCAB of jurisdiction to award vocational rehabilitation benefits. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d Chapter 35, Special Alert, § 35.11[1], [3].]

Yolanda Ortiz, Applicant v. UCSF Stanford Health Care, CIGA, for Reliance National Insurance, in liquidation, Intercare Holdings Insurance Services, Inc., Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 541

W.C.A.B. Nos. ADJ3097538 (SFO 0446365), ADJ2535723 (SFO 0482694)-WCJ David Hettick (SFO); WCAB Panel: Commissioners Lowe, Caplane, Moresi

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 13, 2009

Vocational Rehabilitation-Vocational Rehabilitation Maintenance Allowance-Repeal of Labor Code § 139.5-WCAB affirmed WCJ's finding that 1/7/2008 Determination of Rehabilitation Unit (RU), in which RU determined that applicant/nursing assistant with injuries to cervical spine and upper extremities during period ending 10/19/99 and period ending 12/21/2004 was entitled to retroactive vocational rehabilitation maintenance allowance (VRMA) for period 9/14/2005 and continuing until applicant meets with a qualified rehabilitation representative (QRR), was a "final" order for purpose of creating a vested right on behalf of applicant to VRMA pursuant to Weiner v. Ralph's Company (2009) 74 Cal. Comp. Cases 736 (Appeals Board en banc opinion), notwithstanding 1/1/2009 repeal of former Labor Code § 139.5, because order determined applicant's substantive right to VRMA, order expressly informed parties that they had 20 days within which to file an appeal, defendant did not file timely appeal, and when period for filing appeal ended applicant's right to VRMA vested and was preserved, as was WCAB's jurisdiction over applicant's claim for vocational rehabilitation benefits. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d Chapter 35, Special Alert, § 35.11[1], [3].]

W.C.A.B. No. ADJ 2520255 (VNO 0447779)-WCAB Panel: Commissioner Lowe, Chairman Miller, Commissioner Brass

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed November 3, 2009

Appeals Board Procedure-Sealed Documents-WCAB, finding that applicant's petition for reconsideration was untimely, granted removal on its own motion to seal part of the record that based on evidence presented by applicant, including official letters from law enforcement agency and a judicial body and stipulation from defense counsel, contained erroneous statements by WCJ that would impede applicant's ability to obtain employment; WCAB, citing 8 Cal. Code Reg. §§ 10754 and 10272, found that overriding public interest overcame right of public access, overriding public interest supported sealing the record, if erroneous statements were not sealed, there was a real and substantial likelihood that overriding public interest would be prejudiced, discreet and limited portion of record needed to be sealed, and sealing one page of WCJ's Opinion on Decision and one page of Summary of Evidence here was least restrictive means by which to achieve overriding public interest. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 23.12[3][c].]

Terry D. Brown, Applicant v. Port of Oakland, PSI, Defendant, 2009 Cal. Wrk. Comp. P.D. LEXIS 491

W.C.A.B. Nos. ADJ1990332 (OAK 0251897), ADJ332563 (OAK 0262649), ADJ2879880 (OAK 0263586), ADJ 4303903 (OAK 0264811)-WCJ Christopher Miller (OAK); WCAB Panel: Commissioners Cuneo, Caplane, Moresi

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed November 9, 2009

WCAB Procedure-Vexatious Litigants-WCAB, after ordering matter removed to itself, declared applicant who alleged 12/26/96 right hand injury, 1/26/99 low back injury, mental stress over period ending 3/17/99, low back and psyche injuries on 4/4/2000, and left wrist injury, to be a vexatious litigant pursuant to 8 Cal. Code Reg. § 10782, when WCAB found that since 11/17/2008 effective date of 8 Cal. Code Reg. § 10782 applicant attempted to re-litigate issues which had been finally determined by repeatedly filing unmeritorious papers, and applicant was given notice and opportunity to be heard prior to being found a vexatious litigant but did not respond to WCAB's Notice of Intention; WCAB, upon finding applicant to be a vexatious litigant, ordered that applicant's conditional filings be reviewed by presiding WCJ or WCAB and be accepted for proper filing only if they do not violate 8 Cal. Code Reg. § 10782(a). [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d § 23.10.]

Arthur Davis, Applicant v. Centinela State Prison, Defendant, 2009 Cal. Wrk. Comp. P.D. LEXIS 503

W.C.A.B. No. ADJ2786973 (MON 0358978)-WCAB Panel: Commissioners Lowe, Aghazarian, Brass

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed October 7, 2009

WCAB Procedure-Venue-Change of Venue-WCAB granted petition for removal filed by applicant/plumber alleging injury to various body parts from 8/2000 through 9/2007 requesting rescission of WCJ's order changing venue of this matter from Marina Del Rey district office to San Diego district office, when defendant did not object to original venue until more than two months after it had knowledge of case number, and WCAB found defendant's objection to be untimely under 8 Cal. Code Reg. § 10410 and restored matter to Marina Del Rey district office; WCAB found that its disposition did not preclude defendant from filing a petition to change venue for good cause including, but not limited to, convenience of witnesses pursuant to Labor Code § 5501.6 and 8 Cal. Code Reg. § 10411. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 25.27, 26.02[2].]

Susana Onate, Applicant v. HRMA, dba Extended Stay America Services, Inc., Zurich North America, Defendants, 2009 Cal. Wrk. Comp. P.D. LEXIS 540

W.C.A.B. No. ADJ955342 (VNO 0450157)-WCAB Panel: Commissioners Caplane, Brass, Aghazarian

Workers' Compensation Appeals Board (Panel Decision)

Opinion Filed September 22, 2009

WCAB Procedure-Automatic Reassignment After Reversal-WCAB denied defendant's petition for removal and request for reversal of WCJ's order denying automatic reassignment pursuant to 8 Cal. Code Reg. § 10454, when WCAB found that 8 Cal. Code Reg. § 10454 did not apply because WCAB had previously rescinded WCJ's finding of injury AOE/COE and remanded case for further proceedings regarding applicant/housekeeper's claim for psychiatric injury during period 12/2001 through 5/12/2002; WCAB found that if WCJ's finding of industrial injury had been altered or amended, rather than rescinded, 8 Cal. Code Reg. § 10454 would apply. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d §§ 26.03[1A], 28.36[4].]